Road traffic law has evolved significantly over the years with many proposed changes having come through to fruition. It is often difficult for motorists to keep track of new offences, and itís common that people end up being charged with an offence not knowing that theyíve even committed one! This can be said for the rules around smoking, as the offence was brought in by the Health Act, as opposed to any road vehicle law, making it a little bit more obscure for most motorists.  

Parliament approved regulations in 2015 that makes it an offence to smoke in a vehicle where there are children, yet it doesn’t seem to be widely known (given the number of enquiries we receive about it). The rules, if breached, can land you with a £50 fixed penalty notice, as the rules attempted to crack down on children being exposed to passive smoking. 

When the changes were implemented, there was a question as to how police officers would enforce the regulations, as it was suspected that many drivers would not be stopped should their child appear to be over 18, when in fact they are not. It therefore seemed likely that it would be those with smaller children who are targeted, as stopping all vehicles with borderline children/adults inside would simply be too time consuming. Statistics in 2017 suggested that this was exactly the case, but then in 2018, the police issued further warnings about smoking and vaping and adopted a different approach.

Vaping Whilst Driving

The number of cigarette smokers has fallen since vaping became a new trend, and I myself have often seen motorists vaping behind the wheel. 

Earlier this year, it was reported that police officers had issued warnings to vapers about the risk of being charged with careless driving and attracting penalties of ìup to £2,500, three to nine penalty points and even a disqualification from drivingî. This is, however, not exactly true. The reality is potentially even more serious now, as the fine for careless driving was amended to ìunlimitedî, meaning that there is no upper cap on how much the court can impose. 

Careless driving arises when the standard of a motoristís driving falls so far below the driving of a ìcareful and competentî driver that it is considered careless. This can often be a momentary lapse of concentration (at its lowest) or driving that borders on dangerous (at its highest) and it usually involves an incident where the driving was affected, such as swerving or clipping a bollard. 

The risk vapers face, however, is that they could be looking at a penalty, even if their standard of driving wasnít actually affected due to the huge plumes of smoke that are often discharged. When in a confined space, such as a car, the smoke could easily obscure the windscreen and restrict the view, particularly if there were other factors affecting visibility present (i.e. rain, sun, poor lighting). 

If an officer observes a driver with a cloud of smoke around them, they can expect to be stopped and issued with a fixed penalty of three points and a £100 fine. All the officer needs to do to justify it, is the view that they were distracted. It is difficult to argue against that unless they reject the fixed penalty and take the matter to the Magistratesí Court. If the person is feeling rather indignant about the penalty, they may well consider that, but would then potentially be exposing themselves to much higher penalties, as mentioned above. 

The courts generally adopt a strict view on any driving where the motorist can be distracted, and it would not be easy to persuade the court that the plume of smoke around the driverís head was not a distraction. 

As ever, the safest thing to do is err on the side of caution, as even though you may be gasping for a cigarette or vape, is it really worth risking a penalty, or even causing an accident, if the smoke impairs your ability to drive?