We are specialist drug driving solicitors and are the leading experts in the new drug driving law. If you are being investigated for, or charged with, this offence, call our specialist drug driving solicitors now for free initial advice on 01623 397200.
Which legislation covers drug driving offences?
The law covering drug driving is Section 5A of the Road Traffic Act 1988 as inserted by section 56 of the Crime and Courts Act 2013: Drug Driving – Driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified level.
This legislation came into effect on 2 March 2015.
Why has the law changed to include drug driving as a separate offence?
As existing legislation – Section 4 of the Road Traffic Act 1988, ‘driving whilst unfit’ – was not proving effective in terms of its ‘impairment’ test for those who take drugs and then drive, new legislation was introduced with the aim of ensuring those who offend do not escape justice.
Which drugs are covered by the new legislation and what are the legal limits?
The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 list the 17 drugs and the legal limits for each.
The list of drugs includes both illegal drugs and drugs which may have been medically prescribed.
A panel of experts has set these limits, following consideration of factors such as ‘accidental exposure’.
I have heard drug driving is a zero tolerance offence. Is this true?
No. As indicated above, experts have been instrumental in discussing, and then setting, legal limits.
It is a strict liability offence, which is committed once the specified limit for 17 specified controlled drugs has been exceeded.
Can the police do tests for all known drugs?
Not at present. The police can only test for three drugs at this point in time – Cannabinoids, Benzodiazepines and Cocaine.
What does the process of testing for drugs involve?
First of all, the police carry out a road side test, which is similar in scope to the road side screening breath test for alcohol.
If this test gives a positive result, then the suspect is arrested.
The police have been instructed to continue to gather evidence for the Section 4 offence (driving whilst unfit), so they should do this.
The specimen taken at the police station should be either blood or urine, as per Section 5A (2) of the Act. However, as there are no provisions for the taking of a urine sample, the sample has to be blood.
A suspect could be charged with failure to provide if they refuse to supply blood without a good reason. However, if there is a genuine medical reason for not providing a sample of blood, then they should not be charged with a Section 5A offence.
Evidence gathering can continue in terms of a Section 4 Road Traffic Act 1988 ‘driving whilst unfit’ offence. This is because ‘unfit’ does not reply on the presence of a drug which exceeds a given limit.
Police officers have been trained to investigate both offences at the same time, which they should do, however as the law and procedure is new, our specialist drug driving solicitors are experiencing errors being made in cases that are being charged. It is vital therefore that you instruct our drug driving solicitors to thoroughly review your case for possible defences.
Given there are two different offences, how is a charging decision made?
Guidance from the Crown Prosecution Service (CPS) is as follows:-
“It is important to note that the provisions of s5A RTA 1988 do not prevent the use of s4 RTA 1988. Where the level of drugs exceeds the specified amount, the appropriate charge would be s5A RTA 1988, (driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit). If the level of drugs does not exceed the specified amount, the appropriate charge would be s4 RTA 1988, (driving, or being in charge, when under the influence of drink or drugs).”
Is there a statutory defence to a charge of drug driving?
Yes, there is. If a driver had been prescribed the drug(s) and had taken them as per the instructions of the person who prescribed/supplied them, and can prove this, then they would have a statutory defence.
In order for such a driver to be convicted, the prosecution would have to prove beyond reasonable doubt that the above grounds have not been met.
However, the police can still go forward with the offence under Section 4 of the Road Traffic Act 1988, for which evidence of impairment would need to be collated.
What happens to the samples of blood that have been taken?
Two samples of blood are taken. One goes to the laboratory which will conduct the test and the second sample is given to the suspect. The suspect can pay to have their sample privately tested and it may be worth doing this as it will give a result which can be compared to the police blood sample result. Results may not be identical but they should be similar.
Blood samples have to be stored, packaged and transported in a particular way. There will be guidance for this process.
Where cannabinoids are involved (very fast breakdown rate), then blood samples should be taken within one hour so that results reflect drug level at the time of the offence.
As different laboratories process samples differently depending on the drug involved, it falls to the police officer to identify the drug they suspect has been used. Again, continued evidence gathering relating to specific drug(s) and fitness is important.
Blood samples are tested by an accredited laboratory in a similar way as for alcohol which allows for margins of error.
What sentencing powers do the courts have for drug driving offences?
There is sentencing guidance, effective from 17 November 2016, which is aimed at assisting those sentencing defendants convicted of drug driving offences. There are not, as yet, full sentencing guidelines.
For offences under Section 5A of the Act, driving or attempting to drive, hearings take place in the magistrates’ court where the limit for a custodial sentence (for more serious cases) is 6 months. An offender would also be disqualified from driving for a minimum period of 12 months (or 2/3 years if there are previous offences – see guidance). Fines and community orders are also options available for those sentencing.
For ‘in charge’ offences under Section 5A, sentencing powers range from 10 points and a fine up to a community order and a maximum 12 weeks custody.
Those sentencing also take into account factors which increase seriousness, as follows:-
- Evidence of another specified drug or of alcohol in the body
- Evidence of an unacceptable standard of driving
- Driving (or in charge of) an LGV, HGV or PSV
- Driving (or in charge of ) a vehicle driven for hire or reward
As well as the above (which is an exhaustive list), a wide range of aggravating and mitigating factors can be taken into consideration, and our drug driving solicitors can advise further.
If you have been charged with a drug driving offence, call our drug driving solicitors today on 01623 600645 for free initial advice.