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The offence of driving, attempting to drive, or being in charge of a motor vehicle with a concentration of a specified controlled drug in the body above the specified limit, came into effect on 2 March 2015. The new offence is a strict liability offence, which is committed once the specified limit for any of 17 specified controlled drugs, listed below, is exceeded. The 17 drugs include both illegal drugs and drugs that may be medically prescribed.
This relatively new offence was introduced in an attempt to tackle situations where a driver has taken drugs and drives but has avoided prosecution, because there has been insufficient evidence to prove impairment as prescribed by section 4 RTA 1988 (Driving whilst unfit).
The main offences relevant to Drug Driving are: Drive, attempt to drive, or
be in charge of a motor vehicle with a concentration of a specified controlled drug in the body above the specified limit (Section 5A of the Road Traffic Act 1988); driving whilst unfit through drugs (section 4 RTA 1988).
Drug Driving is a serious offence, which carries a mandatory minimum disqualification for a period of 12 months (36 months for the second relevant offence in 10 years) and a Sentence ranging from a Fine to a Community Order and in extreme cases a maximum period of up to 6 months imprisonment.
Driving whilst unfit through drugs (section 4 RTA 1988) also carries similar penalties.
The Drug Driving offence is committed, when someone drives with a blood concentration in excess of a specified limit for a specified controlled drug. The levels set and stated in the regulations for illegal drugs are set in line with a zero-tolerance approach but rule out ‘accidental exposure’. The law does not make a distinction between illegal or misused drugs and over-the-counter prescription drugs taken as directed by a GP or other medical practitioner.
The individual driver is responsible for ensuring he does not commit an offence by driving when under the influence of drugs. When considering Medicinal Drugs, Doctors have a responsibility to advise their patients of the dangers of side-effects of any medication, but ultimately the responsibility rests with the driver.
‘Illegal’ drugs (‘accidental exposure’ – zero tolerance approach) Threshold limit in blood
Benzoylecgonine (Ecgonine Benzoate) [main metabolite of Cocaine] 50µg/L
Delta-9-Tetrahydrocannibinol (Cannabis) 2µg/L
Lysergic Acid Diethylamide (LSD) 1µg/L
Methylamphetamine (Crystal Meth) 10µg/L
Methylenedioxymethamphetamine (MDMA-Ecstasy) 10µg/L
6-Monoacetylmorphine (Heroin) 5µg/L
‘Medicinal’ drugs (‘risk based’ approach) Threshold limit in blood
Specified ‘illegal or prescribed’ drug
Amphetamine (e.g. Dexamphetamine or Selegiline) 250µg/L
A Roadside Preliminary Drugs Swipe Test will normally be requested by the Police, much in the same way at the Preliminary Roadside Breath Test for alcohol. A Police Officer may only require a person to co-operate with a Preliminary Drugs Test in certain circumstances. Preliminary testing can be required only if the officer suspects that a driver is under the influence of a drug or has a drug in his body; if the driver has committed a moving traffic offence; or if the driver has been involved in a road traffic accident.
The mobile, roadside drug testing device is a disposable detection device that works by analysing a small quantity of saliva. The results are indicated by the appearance of lines on the device (similar to a pregnancy test) within eight minutes of starting the test. The Police test for two drugs, Cannabinoids and Cocaine using a Roadside Drugs Swipe Test. If the result is positive the suspect will be arrested and taken to the police station for a blood sample, which will be used in any subsequent prosecution. A failure to cooperate with the Police in carrying out the test will most likely end in your arrest.
The Police would normally be expected to continue gathering evidence for the section 4 offence, driving whilst unfit, utilising a Preliminary FIT test (Field Impairment Test), in the event that any subsequent blood/drug analysis results in a reading below the prescribed limit. The Police would ask you to perform a series of physical tests, usually at the roadside, such as walking along a straight line, touching the tip of your nose with your finger, and standing on one leg. The Police would also examine your pupils to see if they are dilated while checking for slurred speech and poor coordination. If the Police Officer is not satisfied, then you could be taken to a police station and a blood test undertaken.
Whilst section 5A (2) of the Act states that the specimen will be blood or urine, there are currently no provisions for obtaining a urine sample, the sample has to be blood. As in the requirement to provide a specimen regarding alcohol, if you refuse, without good reason to supply blood, the offence of ‘failure to provide’ may have been committed. Clearly, if you put forward a genuine medical reason for failing to supply a blood sample, then a section 5A offence should not be pursued, but if it is, then it may be argued that a Reasonable Excuse exists, such as a medical reason why you failed or refused to provide a sample.
If a sample of blood is not obtained, then depending on the facts, the Police might continue to gather evidence for the section 4 RTA 1988, driving whilst unfit offence, as this offence does not require the Police to prove that any drug exceeds any particular limit.
So where the level of a particular drugs exceeds the specified amount, the appropriate charge would be section 5A RTA 1988, (driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit) and if not, the police would normally consider the alternative, section 4 RTA 1988, driving whilst unfit offence.
Although this procedure would appear to be best practice, and whilst the Police have received training on this, frequently the Police forget to investigate both evidential aspects of the two offences.
Ultimately, a conviction for any Drug Driving related offence, could result in the loss of your Drivers’ Licence, loss of employment, a significant increase in your insurance premiums and even the prospect of having difficulty travelling to certain countries, such as the USA.
The section 5A RTA 1988 offence allows for two statutory defences. Firstly, if the driver can show that the drugs had been prescribed and that the driver had adhered to the advice of the person by whom the drug was prescribed or supplied and the defendant’s possession of the drug, immediately before taking it, was not unlawful.
The defence places an evidential burden on a person accused of committing the offence. This means that the accused person must simply put forward enough evidence to ‘raise an issue’ regarding the defence that is worthy of consideration by the court. It is then for the prosecution to prove beyond reasonable doubt that the defence cannot be relied upon.
The second defence is only available for offences under S.5A(1)(b) that is, ‘being in charge’ of a motor vehicle. The defence again mirrors that of the legislation in relation to alcohol, in that, at the time of the alleged offence, there was no likelihood of the defendant driving whilst being over the specified limit (S.5A(6)).
The statutory defence does not restrict the ability of the Police to continue with the offence under section 4 RTA 1988.
The Police will request one sample of blood, taken at either the police station or sometimes depending on the circumstances, at a hospital. Once a sample is obtained, with consent, then it is divided into two samples; the Police would normally ask whether the person would like his/her own sample, if not already requested, but if requested one of the samples is then provided. The person will be given a leaflet as to what he/she can do with this sample. The ability to test this sample is minimal, as presently there are only two accredited laboratories and they have been reluctant to accept the samples.
The sample retained by the Police will be sent away for testing to an accredited laboratory. The testing is based on the same methodology as for alcohol. To ensure that the level of certainty is correct, it is important that the Police have ensured that any sample has been stored, packaged and transported in the appropriate way, as the ‘breakdown rate’ for some drugs, such as cannabinoids is quite fast.
As drugs breakdown in different ways, the levels of drugs are much smaller in comparison to alcohol limits, and the variations between the specified levels in the regulations are much smaller than the actual prosecution levels. Normally, one can expect the sample to be taken within one hour of arrest, in order to be reflective of the level at the time of the alleged offence, but this may vary depending on several factors such as, the availability of a Doctor or Health Care Practitioner to take the blood sample.
After the samples have been taken and you are eventually released from police custody or as a patient from hospital, the Police will send off their sample to the accredited laboratory and you will be notified in due course of the results.
As a rough guide, results normally take on average between 4-8 weeks for the Police to receive. If the results show that a level exceeds the specified amount, then you would normally be charged with the section 5A RTA 1988 offence. If the level does not exceed the specified amount then the police may continue to consider the section 4, impairment offence, in the alternative.
The legislation governing Drug Driving is extremely complex and highly technical. If you have been accused of Drug Driving it is crucial that you obtain the best possible legal advice, as soon as possible, which is one of the reasons why it is recommended that you instruct an expert road traffic law barrister. Simon Collingham is a specialist road traffic barrister. He will carefully assess the evidence and then provide you with a comprehensive analysis of the case against you.
Depending on the facts, there may be several possible challenges to the evidence, for example: Challenging the reliability and integrity of the blood analysis; the accuracy of the blood/phlebotomy procedure, were you warned that a failure to provide a specimen would render you liable to prosecution, the ‘Statutory Warning’ (under s.7(7) Road Traffic Act 1988); did you consent to provide the specimen in the full knowledge of the penal consequences; the lawfulness of the drugs swipe request and arrest; whether you were actually ‘driving’ or ‘attempting to drive’; were you suffering from a medical condition that resulted in you refusing or failing to provide a specimen had you consumed drugs after you had driven and that at the time of the alleged driving you were not over the limit.
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