History of Drug Driving / Driving Whilst Unfit

Drug Driving is a relatively new offence as previously, motorists who were suspected of driving whilst impaired by drugs would face a charge brought under Section 4 of the Road Traffic Act 1988 (driving whilst unfit) which carries similar penalties to those of drink driving.

Securing convictions under this charge proved difficult for the Crown Prosecution Service as they have to prove that a driver was not only impaired, but also that this impairment was caused by the presence of drugs (or alcohol depending on the charge).

There was never any set limit for drugs the way there has always been with alcohol cases so securing a prosecution often proved difficult and in an effort to clamp down on driving whilst impaired through drugs, a new “drug driving” provision came into force on 02 March 2015 and the penalties are similar to those imposed for drink driving cases.

It is now illegal to drive if either:

  • you’re unfit to do so because you’re on legal or illegal drugs
  • you have certain levels of illegal drugs in your blood (even if they haven’t affected your driving)

“Legal drugs” are those as part of a prescription or bought over-the-counter. If you are taking medicines and are not sure if you should drive it is strongly advised to talk to your doctor, pharmacist or healthcare professional to seek professional guidance. You should also fully read the enclosed instructions with all medication to ensure that you are aware of any ill-effects that could affect your ability to drive.

When Suspected of Drug Driving

The police can stop a motorist and require you to do a ‘field impairment assessment’ if they think you have taken drugs or are in any way impaired. This is a series of impairments tests that have been in operation for many years as part of the “driving whilst unfit” legislation and include tasks such as walking in a straight line.

Police can now also use a roadside drug kit (much like a breathalyser) that screens for cannabis and cocaine by way of a saliva test.

If the officer(s) think you are unfit to drive because of taking drugs, or an illegal drug is shown on the roadside device, you will be arrested and ultimately be required to provide a sample of blood or urine at the police station for analysis.

If the analysis of your sample confirms the presence of drugs then you may be charged. If the drug is a prescription drug then you will be charged if there is evidence of impairment. If the drug is illegal, then you will be charged regardless of impaired driving.

Types of Drugs and their Limits

Following extensive consultations with medical experts, the limits included in the new regulations are not set at zero as drugs taken for some medical conditions can be absorbed into the body to produce trace effects.

So what drugs are included and what are the prescribed limits? The drugs are broken down into illegal drugs and those used for medicinal purposes.

 

‘Illegal’ drugs (‘accidental exposure’ – zero tolerance approach) Threshold limit in blood (per litre)
Benzoylecgonine 50µg/L
Cocaine 10µg/L
Delta-9-tetrahydrocannibinol (cannabis) 2µg/L
Ketamine 20µg/L
Lysergic acid diethylamide 1µg/L
Methylamphetamine 10µg/L
MDMA 10µg/L
6-monoacetylmorphine (heroin) 5µg/L
Legal/‘Medicinal’ drugs (risk based approach) Threshold limit in blood (per litre)
Amphetamine 250µg/L
Clonazepam 50µg/L
Diazepam 550µg/L
Flunitrazepam 300µg/L
Lorazepam 100µg/L
Methadone 500µg/L
Morphine 80µg/L
Oxazepam 300µg/L
Temazepam 1,000µg/L

You should continue taking any medicine(s) that have been prescribed to you as advised by your doctor or healthcare professional, or according to the patient information leaflet that comes with the medicine.

Unlike the old “impairment” law, this new legislation provides a medical defence if you’re taking your medicine in accordance with a instructions, provided that you are not impaired.

You can drive after taking legal drugs if:

  • you have been prescribed them by a doctor, pharmacist or healthcare professional and strictly adhered to the advice on how to take them; and
  • they aren’t causing you to be unfit to drive (even if you are above the specified limits above)

You could be prosecuted if you drive with certain levels of these drugs in your body and you haven’t been prescribed them.

Drug Driving Penalties

The limits for illegal drugs are set in line with a zero tolerance approach but ruling out accidental exposure. The limits for drugs that may be medically prescribed are set in line with a road safety risk-based approach, at levels above the normal concentrations found with therapeutic use. This basically means that as long as you were taking the prescription drugs in accordance with the directions or guidance from a healthcare professional you may have a defence.

This is different from the approach taken when setting the limit for alcohol, where the limit was set at a level where the effect of the alcohol would be expected to have impaired a person’s driving ability. For these reasons it would be wrong for the court’s to rely on the Driving with Excess Alcohol guideline when sentencing an offence under this legislation but this is largely how the courts have operated in the time since the legislation came into force due to the lack of formal sentencing guidelines.

Guidance Only

At present there is insufficient reliable data available from the Department for Transport upon which the Sentencing Council can devise a full guideline. As a substitute in the interim period, the Sentencing Council has devised guidance courts sentencing offenders. It is important to note that this guidance does not carry the same authority as a sentencing guideline, and courts are not obliged to follow it. However, it is hoped that the majority of courts will find it useful in assisting them to deal with these cases.

The Sentencing Council will, in due course produce a guideline with the assistance of evidence and data gathered by the Department for Transport.

Offences involving Driving or Attempting to Drive
Sentencing would be dealt with in the Magistrates’ Court as opposed to the Crown Court and the guidance says that they must disqualify from driving for at least 12 months.

In more serious cases the court can impose a maximum of 6 months imprisonment and/or an unlimited fine.

If it is your second offence within 10 years then the court must disqualify you for a minimum of 3 years.

If you have been banned on two or more occasions for periods of 56 days or over then you will face a minimum of 2 years disqualification.

As a guide, where an offence of driving or attempting to drive has been committed and there are no factors that increase seriousness (i.e no passengers or other aggravating factors) the Court should consider a starting point of a Band C fine, and a disqualification in the region of 12 – 22 months.

Where there are factors that increase seriousness the Court should consider increasing the sentence on the basis of the level of seriousness.  The community order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness. The Court should also consider imposing a disqualification in the region of 23 – 28 months.  

The custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one or more aggravating factors (see below). The Court should also consider imposing a disqualification in the region of 29 – 36 months.

Having determined a starting point, the Court should consider additional factors that may make the offence more or less serious.

3 Factors that increase seriousness (this is an exhaustive list)  

  1. Evidence of another specified drug or of alcohol in the body
  2. Evidence of an unacceptable standard of driving  Driving (or when in charge of) an LGV, HGV or PSV  
  3. Driving (or in charge of ) a vehicle driven for hire or reward

The penalties imposed for those found guilty of drug driving are very similar to those of drink driving and failing to provide a specimen.

The limits for illegal drugs are set in line with a zero tolerance approach but ruling out accidental exposure. The limits for drugs that may be medically prescribed are set in line with a road safety risk-based approach, at levels above the normal concentrations found with therapeutic use. This basically means that as long as you were taking the prescription drugs in accordance with the directions or guidance from a healthcare professional you may have a defence.

This is different from the approach taken when setting the limit for alcohol, where the limit was set at a level where the effect of the alcohol would be expected to have impaired a person’s driving ability. For these reasons it would be wrong to rely on the Driving with Excess Alcohol guideline when sentencing an offence under this legislation but this is how the courts have operated in the time since the

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