What You Need to Know About Tiredness, Driving and The Law – Part Two

Image by LATUPEIRISSA from Pixabay

What, you didn’t check Part One of this article? Then we gently encourage you to do so, but if you’re really too busy, here’s the TL;DR:

  • Recent news stories have reported that drivers could soon face sleep-deprivation blood tests (more on that in a bit).
  • It turns out that driving with even modest sleep deprivation significantly increases your risk of having an accident.
  • It’s tough to get solid stats on how many accidents are caused by sleep deprivation, but it’s probably a lot.
  • Young men (18 – 30 years old) are more likely to drive when they’re tired than other groups.

This time we’ll look at what the law is on fatigue and driving?

The law on sleep-deprived driving is straightforward… in theory

A quick glance at the CPS website makes it pretty clear that you can be prosecuted for driving while sleep deprived. Here we go:

The offence of dangerous driving under section 2 of the Road Traffic Act 1988 is committed when the defendant’s driving falls far below the standard expected of a competent and careful driver and it would be obvious that driving in that way would be dangerous – section 2A of the RTA 1988.

Some typical examples from court cases of dangerous driving are:

  • [Various other examples]
  • driving when unfit, including having an injury, being unable to see clearly, not taking prescribed drugs, or being sleepy [our emphasis];
  • [Some more examples]

…but not in practice

That’s where things stop being straightforward. Even if you take the worst case scenario of sleep-deprived driving, where someone gets killed as a result,  the penalties can vary wildly:

  • You could be tried in a magistrates court (yes, really), and if sleep was judged to be an aggravating factor in the accident, you could get a community order. The maximum sentence that a magistrate’s court could pass is six months in prison.
  • Or you could be tried in Crown Court and, with the same judgement, get up to five years in prison.
  • Or your driving could be deemed dangerous (as opposed to careless) and you could get up to 14 years.
  • On the other hand, mitigating circumstances could be taken into consideration (e.g. you were driving when overtired due to an emergency)

[You can find out more by visiting this excellent article by themotoringlaw.com.]

The burden of proof

On top of that, there’s the difficulty in proving that someone is too sleepy to drive.

Think about this in comparison with alcohol. First of all there’s an objective limit, and the police have a straightforward way of judging if you’re over it: you blow into the little thingy and there it is. But tiredness lacks an objective standard or any way of measuring it.

In fact, the lack of a roadside test means that sleep-deprived driving is far more likely to be prosecuted when it has already caused an accident. And even then, it’s not easy to prove that sleep deprivation was a factor.

Concrete evidence of sleep deprivation can come from dash cam footage from the driver’s car, or someone else’s, or witness statements. Indirect evidence comes from an absence of braking when the driver might reasonably have been expected to have seen the hazard. Even more indirect evidence is where there’s no other obvious explanation for a crash: no medical conditions, no mechanical problems with the car, no difficult road conditions, etc.

From a prosecution point of view, none of this is ideal!

What about medical conditions and sleepiness?

In the midst of this blurry picture, the law is pretty clear about any medical condition that makes you sleepy. You have to tell the DVLA if you have:

  • confirmed moderate or severe obstructive sleep apnoea syndrome (OSAS), with excessive sleepiness
  • either narcolepsy or cataplexy, or both
  • any other sleep condition that has caused excessive sleepiness for at least 3 months – including suspected or confirmed mild OSAS

What’s more, you can’t drive unless you’re following a proper treatment plan.

OK, fair enough, though the government explanation of excessive sleepiness seems broad enough to include half the population:

Excessive sleepiness means that you have had difficulty concentrating and have found yourself falling asleep – for example while at work, watching television or when driving. [our emphasis]

Where does all that leave us?

So to sum everything up: sleep-deprived driving is more dangerous than most people realise, causes a lot of accidents (though no one knows how many), is illegal if it makes your driving careless or dangerous, but is hard to define and even harder to prove.

We started this two-parter talking about the possibility of a blood test for sleepiness. If one could be developed, it would get rid of a lot of uncertainty. Drivers could have a hard-and-fast definition of what is too sleepy, police could gather evidence after a collision, as they currently do for alcohol, and the CPS could use this where necessary.

A couple of researchers at Monash University in Australia are working on it. According to the team’s leader, Professor Clare Anderson, they’ve identified five substances in the blood that show if someone has been alive for 24 hours. They say that the test is 90% accurate.

Hmm. So even with extreme sleep deprivation, the test gets it wrong 10% of the time. That doesn’t sound anywhere near good enough to base a legal judgment on. And the test can’t yet differentiate between lower levels of sleep deprivation. For the moment, file this one under, ‘work in progress.’

One of the research team believes that viable tests might be available within five years. We’ll have to wait and see.

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