Driving Under the Influence of Drugs

Tuckers Solicitors Roads Traffic lawyers provide legal advice and representation in all cases related to dangerous driving including driving under the influence of drugs.

An allegation of driving whilst unfit under the influence of drugs can be brought if the Police have reason to believe that you were driving a motor vehicle on the road or in a public place after consuming drugs. This can include drugs that are legal as well as those that are illegal.

To determine whether you are unfit to drive a vehicle, the Police will carry out a field impairment test. If you fail this test you may be taken to the Police station to undergo biological tests such as blood or urine samples. It is an offence to refuse to participate in any of these tests, either at the Police Station or on the roadside.

The allegation of drug driving is an extremely serious one and could lead to a custodial sentence. Our specialist team of lawyers will review the strength of the prosecution’s case against you and advise you on the merits of your case. Prosecutions for drug driving offences are restricted to those where Police can prove that an individual is incapable of driving because of drugs.

Our lawyers are available 24 hours a day, providing immediate advice, representation and assistance during legal proceedings, ensuring the best interests of our clients. Please contact our Road Traffic and Driving Offences Department on 0808 164 6795 or email info@tuckerssolicitors.com.

The Law on Drug Driving in England & Wales

The offence of driving whilst unfit through drugs was well known for being difficult to prove. The roadside procedure for detection was largely based on the opinion of the arresting officer and the prosecution often had trouble proving that driving was impaired, allowing ample room for challenge from the defence.

However, things changed last year when new rules seeking to make it easier to successful prosecute drug driving came into force. Section 56 of the Crime and Courts Act 2013 took inspiration from the offence of driving under the influence of alcohol, by introducing prescribed limits for certain illegal and prescription drugs. Under the new law, there is no requirement to prove the driver was impaired, only that the level of drugs in the driver’s body exceeded the legal limit.

The roadside procedure was also amended in an attempt to make it less vulnerable to challenge. Dräger devices – or ‘drugalysers’, as they are often referred to – can be used at the roadside to obtain evidence of drug taking.

At Tuckers, our vast experience, exceptional reputation and robust attitude means we have already identified problems with the implementation of the new procedure. Consequently, our Specialist Road Traffic Department, headed by highly respected, dual qualified solicitor and barrister Asim Ali, remain vigilant as the police and prosecution continue to get to grips with the changes.

Here, we discuss the law on drugs and driving, issues with the new procedure and our approach to defending drug driving cases. If you need expert legal advice and representation, please contact Richard Egan by e-mail at eganr@tuckerssolicitors.com, or by phone on 0771 112 9918, or Asim Ali at alia@tuckerssolicitors.com or on 0161 233 4321 (ext. 1083) or 07816950179.

Drug Driving Limits

Section 56 of the Crime and Courts Act 2013 and the accompanying Regulations make it an offence to drive if you have certain levels of drugs in your system, even if your driving is not impaired. The prescribed limits set out in the Regulations include both legal and illegal drugs, for example diazepam, morphine, cocaine and cannabis. The limits for each drug are very low; in essence, it is a zero tolerance approach.

Before the new law came into force in 2015, the police were required to prove that the driver was unfit to drive because of taking drugs. Under the new legislation, it is only necessary to prove that the level of drugs in the driver’s system exceeds the legal limit.

At the roadside, if the police suspect a person is driving while under the influence of drugs, they can stop the person and carry out a field impairment assessment (FIT) and/or use a Home Office approved Dräger device to test for the presence of certain drugs. If, after testing, the officer believes the driver is unfit to drive because of drugs, they will arrest the person and take them to the police station, where they will be required to provide a blood or urine sample. The blood or urine taken must be split into two, and one sample given to the driver in case they wish to conduct an independent test. You can find out more about providing a specimen here.

The penalties for drug driving include a mandatory driving disqualification of a minimum of 1 year, a fine up to £5,000, up to 6 months in prison and, of course, a criminal record. Your driving licence will also show that you have been convicted for drug driving and this will last for 11 years. The penalties for causing death by dangerous driving whilst under the influence of drugs is a prison sentence of up to 14 years.

Drug Driving Procedure – Our Concerns

In several cases, our Specialist Road Traffic Department has identified areas of concern with the application of the new procedure by the police. Drivers may be vulnerable to officers’ lack of experience as they continue to get to grips with the updated law. For example, five police officers unfamiliar with the process were involved at the police station – all at once – following the arrest of a driver. Due to the sheer number of officers involved, it was unclear whether the defendant understood – or indeed, could hear – advice being given on the consequences of failing to provide a sample.

What’s more, the use of so-called ‘drugalysers’ is concerning, considering they are only capable of detecting two of the 16 drugs covered by the new law. This means much of the roadside procedure remains the same as it did before the new legislation came into effect: subjective and slow.

Another area of concern is the ambiguous nature of the new ‘medical’ defence created by the 2013 Act. Under the new law, it is a defence if a person is charged for driving over the prescribed limit for one of the specified drugs if:

1. the drug has been prescribed or supplied to them for medical or dental purposes; and,
2. they took the drug according to directions from the person who prescribed or supplied and any accompanying instructions.

Problematically, this defence does not take into account what would happen if more than one drug is taken in accordance with the criteria above. Nor does it take into consideration how different people react to different drugs.

The legislation that has been in place since March 2015 limits the amount of drugs one can have in one’s blood for 16 of the most common drugs which are seen to be used and abused. They include cannabis (THC), morphine (heroin), cocaine, diazepam, ecstasy and temazepam. The limits are specified as micrograms per litre of blood with ‘2’ being the limit for THC, the primary component of cannabis. If the blood limit exceeds the specified levels, the individual is charged and penalties are similar to those for drink driving. It takes about 6 or 7 hours for the cannabis to leave the blood. Of course, some forms of cannabis are stronger than others and therefore home grown cannabis can be 5 or 6 times more potent than imported cannabis.

Police often use mouth swabs to show that drugs may have been used by the individual. This can cover all types of drug. It does not necessarily mean that ‘trace’ usage of drugs will be identified by the swab, however, if the swab does identify the use of a drug, it is at least 80% likely that the person is over the drug/drive limit for the specified drug. If the level is below the legal limit, there is no offence committed and of course it is no longer possible to conduct impairment tests on the individual. Therefore, as with drink driving, there does not have to be impairment of one’s ability to drive if you are over the legal limit.

The continuity of samples is another element of the process that warrants close attention. In some previous cases, the prosecution had been unable to prove that the sample tested belonged to the defendant; a fact that the defence could use in order to argue that procedure was not correctly followed.

Finally, sentencing by courts is also causing concern. With official guidelines yet to be issued, courts have a wide discretion when making sentencing decisions. Some courts have been using the drink driving guidelines for direction. This is a dangerous practice that could result in disproportionate sentencing.

Tuckers’ Approach to Drug Driving Cases

The new procedures are not without problems. Defence experts Richard Egan and Asim Ali are acutely aware of the potential for procedural errors and unfairness towards defendants, and they will remain on top of this situation as the authorities continue to apply the new procedure.

We have successfully defended numerous clients involved in drug driving cases, many of whom have been subject to police procedural errors. We take a robust and fearless approach to every case involving drugs and driving in order to protect our clients’ rights and achieve the best possible outcome for them. Our road traffic offence specialists understand how overwhelming it can be if you are stopped and arrested by the police. We will help you understand the process and will work hard to reduce the impact and stress involved.

If you are being charged or prosecuted for drugs and driving offence, contact Richard Egan by e-mail at eganr@tuckerssolicitors.com, or by phone on 0808 164 6795, 24 hours a day, 7 days a week for reliable advice and representation.