There has been a mixed response to the recent installation in pubs across the country of breathalyser machines.  Some argue that the machines could help save lives by keeping those over the limit off the roads, others see that those who are close to the limit might test negative in the pub and then drive home when really they are not safe to drive.  The police would always say that the only way to be 100% sure that you are safe to drive is not to mix alcohol and driving at all.  So is the installation of a breathalyser in your outlet a good idea?

The law
It is an offence to drive when the level of alcohol in breath is over 35mg.  Depending on the level of alcohol drink driving can carry a penalty of anything from a fine to custody as well as a lengthy period of disqualification from driving.  A reading of 35mg in breath equates to about 2 units of alcohol for most people, however, some can drink more than 2 units and be under the limit, some will drink less and still be over the limit.  How the body absorbs alcohol depends on many factors.

Using a breathalyser in a pub will give a customer an indication of the level of alcohol in their breath, however, the only reading that will count in legal proceedings is the reading taken at the police station.  Police breathalysers are regularly recalibrated and it is likely that your machine will become inaccurate after a fairly short period of time.  You should make it clear to customers that readings should not be relied upon.

Liability of the publican
The idea behind a pub breathalyser is that customers can check their reading before they leave the pub.  Some people will find it amusing to check how high their reading is – those are the ones who should obviously not be driving home. But consider the ones who are borderline and then feel safe to drive because of the reading given by your breathalyser.  Have you aided and abetted an offence if someone who uses your machine subsequently drives whilst over the limit?

We know that publicans can legally sell alcohol to consumers – they are licensed to do so.  We also know that it is an offence to serve a customer who is “drunk”.  So where do you stand if your customer decides to drive home over the limit?  Whilst publicans owe a duty of care to their customers, it is the customer who decides to consume the alcohol he has been served or to drive home.  This decision making by the individual breaks the chain of causation meaning that the publican is not liable for the customer’s subsequent actions. 
This was confirmed recently in an Irish case – see Kimbell’s article “Irish Publican not liable for drink drive death”.  The chain of causation is also discussed in our article “Responsibility for the death of a drunk customer”.
It is unlikely, on the law as it currently stands, that a publican would be liable for the drink driving of a customer. However it is important that there is no direct connection between the landlord and the actions of the driver – e.g. no car keys are handed over by the publican to the driver as he leaves the pub.  It must also be made clear that there is no encouragement given to customers to drink and drive.  This can be evidenced by the use of posters warning that drink driving is illegal.  The THINK shop has many suitable examples. See:

The installation of a breathalyser should also be seen as discouraging drink driving.  It is however, important that your machine makes clear that it is not to be relied on and that if a reading is close to the limit the driver’s abilities are significantly impaired at that point.

Designated Driver Promotions
A positive approach would be to sign up to one of the Government’s THINK campaign Driver Friendly initiatives over Christmas.  The Designated Driver campaign will run again this December with various soft drink producers offering “two for one” deals for drivers.  THINK! supplies Driver Friendly packs, including beer mats and posters, to pubs wishing to run a soft drink promotion aimed at drivers.  Look out for the “Driver Friendly” logo.

The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.