Provisional Legislative Council
Panel On Transport
Review of Drink Driving Legislation
This paper presents results of the comprehensive review on the effectiveness of the new drink driving legislation and proposes to tighten the prescribed alcohol concentration limit.
2.Section 39 of the Road Traffic Ordinance (RTO) was amended in June 1995 and came into effect on 15 December 1995 to tackle the problem of drink driving. The amendments were mainly to :-
- prescribe a legal limit of alcohol concentration in a driver's blood, urine and breath; and
- impose a legal obligation on drivers to provide samples of blood, urine or breath for testing in specified circumstances.
3.The Blood Alcohol Concentration (BAC) limit was prescribed at 80mg per 100ml of blood. It was the higher of the two common standards adopted by most countries in Europe and states in USA and was a reasonable starting point for introducing such standards into Hong Kong. Some Members of the Legislative Council Bills Committee, however, considered that to provide stronger deterrence, a tighter limit should be adopted.
4.The Administration therefore carried out a review, which covered this point, as well as other issues; viz, the existing level of penalty, justification for random breath testing and the need for additional resources for Police enforcement.
5.In considering the legal limit of Blood Alcohol Concentration (BAC), it is noted that the most commonly adopted limits in overseas countries are 50mg and 80mg/100ml of blood. The examples are as follows :-
- Countries adopting the 80 mg/100 ml limit : Austria, Belgium, Denmark, Germany, Ireland, Italy, Malaysia, Singapore, Spain, Switzerland, United Kingdom, USA " (13 states).
- Countries adopting the 50 mg/100 ml limit : Australia, Finland, France, Greece, Japan, Korea, Netherlands, Norway, Portugal, Yugoslavia.
* The BAC limit in USA varies between 100 and 80mg in different States
6.The 50mg limit threshold, which for most people would equate to about two cans of mild beer or 11/2 small glasses of wine in the first hour, represents the point at which a person who is most susceptible to alcohol starts to experience a significant impairment of driving ability. The 80mg threshold, which for most people would equate to about three to four cans of mild beer or 3 small glasses of wine in the first hour, represents the point at which a person who is less susceptible to alcohol starts to become significantly affected.
7.Researches by Australia indicate that the risk of being involved in a crash gradually increases at each BAC level, but rises very rapidly after a driver reaches or exceeds the 80mg level compared to drivers at zero level:
(mg/100ml of blood)
|Risk of being involved in a crash (times higher than normal)
Researches by Australia also indicate that a change in the legal limit from 80 to 50 mg/100ml of blood in the provinces of New South Wales and Queensland resulted in a reduction in night-time accidents (about 4% in fatalities and 8% in injuries).
8.Lowering the limit will also deter potentially dangerous drink driving behaviour. From researches by Australia, it is expected that, with a lower BAC limit, drivers are more likely to keep a mental account of the number of drinks consumed and thereby stay within the limit. This would help to moderate their drinking behaviour and promote safe driving. The 50mg limit is hence a stronger preventive measure than the 80mg limit.
9.Furthermore, overseas medical bodies and road safety authorities such as the World Medical Association, the European Commission and the Royal Society for the Prevention of Accidents (RoSPA) strongly recommend a lower BAC limit of 50mg which is an international standard adopted by the World Medical Association at its 44th World Medical Assembly in 1992.
10.A summary of world-wide drink-driving statistics is shown at Annex A. It is noted that the drink driving problem in Asian countries is comparatively less serious, but Hong Kong has a relatively higher percentage (10%) of alcohol-related driver fatalities and alcohol-related accidents than other Asian countries like Singapore and Japan.
11.The world-wide trend is towards lowering of the legal alcohol limit, as one way of separating drinking and driving. 13 States of the USA have tightened their BAC legal limit from 100mg to 80mg. Australia, Portugal, Belgium and France have lowered their limit from 80mg to 50mg.
Drink driving situation in the territory
12.A detailed breakdown of the statistics from 24 June 96 to 30 November 97 is at Annex B. During this period, a total of 27162 alcohol tests were undertaken. 97.7% (26549 cases) involved accidents, It was found that 8.9% (2357 cases) involved drivers having consumed alcohol. Of these, more than half had BAC above 80mg/100 ml of blood. The relatively high percentage of above limit cases indicates that some drivers still have difficulties in moderating their drinking habits.
13.In the remaining 2.3% (613 cases), 313 cases were screening tests conducted when the Police officer suspected that the driver had alcohol in his/her body based on observed erratic driving manner. Of those, 57.8% (181 cases) were above the prescribed limit; 28.1% (88 cases) had been drinking, but were below the limit, and only 10.9% (34 cases) were alcohol free. These figures support the theory that driver behaviour is impaired by alcohol even below the present prescribed limit.
14.The implementation of drink driving legislation had put across the essential message to the public that drink and drive should not mix. Since the legislation came into effect statistics shows that there was a significant reduction in night-time injury accidents when compared with previous years (details at Annex C). Further tightening of the prescribed alcohol concentration limits will reinforce the message and promote greater awareness of road safety.
15.Although the percentage of alcohol-related accidents out of total number of all-day accidents in Hong Kong is relatively small (only 2.6% in 1996), one out of every 10 drivers killed in an accident had consumed alcohol before the accident. Besides, the danger is not only to drivers, but also to pedestrians and passengers. Since 24 June 1996, 16 drivers killed have been found to have consumed alcohol, but at the same time in accidents involving drinking and driving, 3 non-drinking drivers, 9 passengers and 9 pedestrians were killed.
16.Tightening the limit does not mean banning casual/social alcohol consumption. For those who want to drink, public transport alternatives are always an option.
17.For Members' reference, a brief description of the testing procedure, and the current and proposed legal limits of alcohol concentration in blood, urine & breath are set out in Annex D & E respectively.
18.The proposal was supported by the Transport Advisory Committee at its meeting held on 16 December 1997. It is also supported by local groups such as the Hong Kong Medical Association and the Road Safety Council which includes representatives from the Hong Kong Automobile Association, The Institute of Advanced Motoring and the Road Safety Association.
19.The possibility of lowering the BAC limit from 80mg to 50 mg/100ml have not attracted any adverse comments from the public or the mass media.
Other issues reviewed
(a) Level of penalty
20.Under the existing legislation, a driver on first conviction may accrue 10 demerit points and be subject to a maximum fine of $25,000 and up to 3 years' imprisonment. On second or subsequent conviction, a driver will face a suspension of driving licence for 2 years or more plus a maximum fine of $25,000 and up to 3 years' imprisonment. Furthermore, failing to provide a specimen of breath, blood or urine for test without reasonable excuse will also be treated as committing the same offence as drink driving.
21.Since the commencement of the legislation, a total of 902 drivers were convicted of drink driving, and were generally fined $1,000 - $12,500 plus a suspension of driving licence for 24 months or less.
22.The penalties for drink driving convictions are generally heavier than those for other traffic offences. For example, the maximum penalty for speeding is a fine of $4,000 and 5-8 demerit points and that for careless driving, a fine of $4,000, 5 demerit points and imprisonment for 6 months. On balance, the existing level of penalty for drink driving is reasonable and adequate.
(b) Random Breath Testing
23.The Administration maintains its view that random testing should not be introduced at this stage due to the following reasons:
- the setting up of road blocks for random testing causes further congestion to our busy roads;
- substantial additional Police resources will be required (additional capital and recurrent cost are estimated to be $2.4 million and $20 million respectively); and
- the legal advice that although it is debatable whether the practice involves an interference with privacy within the meaning of the Bill of Rights and therefore should not be ruled out completely on human rights grounds, the introduction should only be seriously considered if there is clear evidence, which there is none, that the current drink driving laws are not proving effective.
(c) To allow nurses to take blood specimens
24.The current legislation stipulates that a blood sample can only be taken at a hospital by a registered medical practitioner (doctor). Experience has shown that it usually takes 30-60 minutes for the Police to obtain a doctor in a hospital for this procedure. As the alcohol content in the body decreases with time, and as nurses are also competent to take blood, it is proposed to amend the law to also allow nurses (both registered and enrolled nurses) to take blood at the hospital.
(d) To allow refusal of providing blood specimen be made at a police station
25.Under the current legislation, the Police can only ask at a hospital a suspect to provide a specimen of blood. Thus, the suspect must be brought to a hospital to confirm his/her refusal to provide a specimen, even though he/she may have already expressed his/her refusal at the scene or police station. To streamline the procedure, it is proposed to amend the law so that the requirement to provide a specimen of blood and the refusal to do so can also be made at a police station. The actual taking of blood, if the suspect agrees, still has to be done at a hospital.
(e) To allow breath specimen to be taken at centres
designated by the Commissioner of Police
26.Under the current legislation, the requirement to provide breath specimens for evidential analysis has to be made at a police station or a hospital. Due to the size and geographical features of some regions, some evidential breath analysing instruments have to be installed at Traffic Police Offices to facilitate enforcement action. As these offices do not fall within the definition of a police station, it is proposed to amend the law to empower the Commissioner of Police to designate these offices as approved " breath analysis centres' by notice in the Gazette.
(f) To extend the mandatory 5-year ban on driving licence
application to cover convictions under s39A, 39B and 39C
27.The current Road Traffic (Driving Licences) Regulations imposes a mandatory 5-year ban on application for a full driving licence to drive a motor vehicle; and cancellation, a ban from renewal and a 5-year ban from issuance of a driving instructor's licence, in respect of a conviction under section 39 (driving under the influence of drink or drugs) of the RTO. The penalty for offences under the new sections on drink driving, i.e. Sections 39A, 39B and 39C, added in 1995, are identical to those under Section 39. Hence, the sanctions under the Road Traffic (Driving Licences) Regulations applicable to section 39 should be extended to Sections 39A, 39B and 39C.
28.Members are invited to advise if: -
- the prescribed alcohol concentration limit should be reduced from 80mg to 50mg/100ml of blood; and
- the legislative amendments proposed in paragraphs 24 to 27 above should be pursued.