Is it just a load of hot air?

That’s an understandable fear, particularly as one ex-policeman a few years ago described the process of selling drinks to drivers as ‘putting a loaded gun in their hands.’

But first, to deal with the question of whether such machines could be said to ‘encourage’ people to drink and drive, and if so, whether this could make the licensee guilty of aiding and abetting their actions.

The wording on machines which I have seen could certainly not be said to act as any form of encouragement for people to drink up to a limit, or beyond. On some, even where the test shows a driver still in the category which is under the limit, the message states ‘your driving ability is significantly impaired; it is dangerous to drive’. This can hardly be construed as encouragement.

On the second question of whether the licensee could be held personally liable, from a legal standpoint I am of the opinion that he could not. If it is already extremely difficult for lawyers to sustain a case against a landlord or members of staff for supplying drink to a person prior to driving, because the courts have held that the decision — and therefore the guilty mind — was that of the driver, how much more difficult to suggest that a testing machine increases that risk?

In reality, the choice is the customer’s. It is necessary to show active encouragement or connivance by the landlord to sustain a prosecution for aiding and abetting any offence, not merely the fact of doing the job which he is permitted and licensed by law to do, namely selling alcohol.

As a leading judge said in a case in 1987: ‘The selling by a licensee to a customer of a large quantity of intoxicating liquor for consumption on or off the premises cannot, of itself, impose a duty to take care of the customer. It would be unreasonable to expect that a count or tally of the amount of drink served to a particular customer or party of customers was kept.’

That was in the context of the civil law, of course, but it has relevance when considering criminal responsibility. It is not impossible for a careful landlord to keep a check on his customers, but it is not reasonable to expect him to hold himself responsible in law for what they do when they leave.

The only type of case in which a licensee was held liable for aiding and abetting a drunk driver was in circumstances where he handed over the keys of a car in the car park when he knew that the person was about to drive off.

The question of car keys becomes relevant when people are advised to leave them with the licensee. The greatest care must be exercised here, because there is then a direct connection between the driver and the landlord.

However, there is still no connection between the landlord and a subsequent accident or injury, because all that the publican can reasonably be expected to do in the circumstances is actively to discourage the customer from driving.

It’s a very complicated legal area, which is why there is so much concern. But consider this: a warning notice in your bar against driving over the limit is considered prudent behaviour. Why is a warning notice on a testing machine, containing the same facts, considered dangerous?