Legal advice: In the driving seat

Barstaff must be aware of whether drinkers are driving.

by Niall McCann of thePublican.com's legal team of experts from London solicitors Joelson Wilson.​

As a student I worked in a pub and among the various oddballs I encountered was one local who insisted that his final pint of lager in the evening should have a lemonade top.

This was because he was convinced a shot of lemonade would dilute the previous seven pints and ensure that he could drive home in complete safety.

Armed with that knowledge, I always quizzed the drinker about his journey home and I refused to serve him until he started being sensible and staggered home on foot at the end of the evening.

This example of somebody risking drink-driving is not an isolated case. I am sure that you face similar situations on a daily basis.

The number of drink-drive deaths has increased by 22 per cent in recent years, with 530 people being killed in 2001, compared with 460 in 1998. Those are the statistics, but what is the law?

The law states that a police officer can ask any person to take a breath test if they are driving, attempting to drive or are in charge of a vehicle on a public road or a public place. The car park of a public house is considered a public place.

If the breath test reveals that the person has 35mg of alcohol per 100ml of breath or greater, then an offence has been committed.

For a police officer to request that a breath test is taken they have to have reasonable cause to suspect one or more of the following:

• a driving offence has taken place or is currently taking place
• the person driving, in charge of, or attempting to drive the vehicle has consumed alcohol
• the person driving, in charge of, or attempting to drive the vehicle has been involved in an accident.

So far then, matters are quite straightforward. However, what happens if a driver is breathalysed and the reading is only just over the limit?

If the breath test reading is 50mg or less, the driver must be offered the option of giving a urine or blood sample. Police require a person's permission before taking a blood test, although, if refused, the result of the original breath test stands.

As with other criminal offences, if a person is charged they must be formally cautioned, including the advice that anything that they say may be later used in evidence.

Generally, bail will be given before the court hearing. In certain areas, drivers accused of drink-driving are swiftly brought before the court and a driver can often be banned within days of the offence.

If found guilty of a drink-driving related offence, the penalties are high. The court can issue a fine of up to £5,000 and/or pass a sentence of up to six months imprisonment.

There is a mandatory disqualification of at least 12 months for the first offence and at least three years for a second offence within 10 years.

A frequently asked question is how much alcohol can be consumed before being over the limit? Doctors can provide the official figure, but in practice the answer is that there isn't a safe level.

Disregarding the amount consumed, alcohol levels in the breath or blood vary considerably and depending on factors such as a person's size, age, tolerance to alcohol and whether they have recently eaten.

In short, as the government and campaign groups are at pains to point out, there is no safe amount to drink before driving - even a small amount of alcohol affects a person's reaction time.

So next time one of your regulars staggers out of your pub clutching their car keys, try and reason with them. After all, think of the loss of business if your best customers are behind bars rather than drinking in front of yours!