What is the drug drive law in England and Wales?
The law regarding drug driving in England and Wales is governed by section 5A of the Road Traffic Act 1998. This law prohibits the use of a motor vehicle whilst under the influence of a controlled substance. In March 2015, thresholds for eight prescription drugs and eight non-prescription drugs were revised downwards, meaning lower levels of these drugs result in prosecution than had originally been proposed. Shortly thereafter, the threshold for amphetamine was also revised downwards as a deterrent against abuse of the drug and drug driving.
What are the drug driving limits?
Until recently, drug driving charges were relatively rare. The offence of driving whilst unfit through drugs required proof that a person had taken drugs and that the person’s driving had been impaired as a direct result. There was a perception on the part of the authorities that drug users were avoiding charges due to insufficient evidence regarding the effect that the drugs in their system had on their driving ability. For this reason, the offence of driving whilst over the limit for drugs came into force in March 2015. The new offence introduced limits for a wide range of offences. Limits were set for some controlled substances such as cannabis, MDMA, and cocaine. Other limits were introduced for prescription drugs such as diazepam.
The limits for each substance are set out below:
|Illegal Drugs||Limit in blood|
lysergic acid diethylamide
lysergic acid diethylamide
|‘Medicinal’ Drugs||Limit in blood|
What is the penalty imposed following a drug driving conviction?
Factors such as whether there is evidence of serious driving impairment, whether there were passengers, whether other road users were placed at risk, and the relevance of any previous similar convictions will be taken into account.
Current drug driving penalties include:
- One Year Driving Ban – There is minimum driving ban in place for all drug driving convictions. Any motorist found guilty of drug driving can expect to have all driving privileges removed for one year – this includes driving work vehicles. Longer bans may be considered where the driver is above the legal limit for more than one substance.
- Fine – The Magistrates’ Court is not limited by an upper cap on fines that may be imposed relating to a drug driving conviction. All circumstances will be taken into consideration – including the severity of the offence and the motorist’s personal circumstances (e.g. income, dependants, etc.).
- Custodial Sentence – A custodial sentence of up to six months may be given to drivers convicted of drug driving offences. This is, however, a loose guideline as all drug driving convictions are looked at on an individual basis – custodial sentences are typically reserved for the most serious offences*.
- Criminal Record – Under certain circumstances, employers may need to perform enhanced checks as part of the interview process. This could mean that individuals are required to disclose information regarding any convictions. This includes spent convictions. These enhanced checks may hinder efforts to secure employment.
*Causing death by careless driving whilst under the influence of drugs is a separate offence for which the maximum sentence is 14 years.
How do the police test for drug driving?
Where a driver is suspected of operating a vehicle after having consumed drugs, the police will normally perform a roadside saliva test (preliminary test). The sample of saliva is taken using a handheld device that typically returns a positive or negative result for the drugs after around 8-10 minutes.
Where a preliminary test is positive, or where there are grounds to suspect the presence of a drug that is not cocaine or cannabis, the police may arrest a driver for the purpose of requiring a sample of blood. Blood is the only bodily sample for which there are limits for each type of drug – a blood sample must be obtained and analysed to support a prosecution for drug driving.
Under s7 (3) Road Traffic Act 1988, before a sample can be lawfully required by the police there must have been either a positive preliminary test or the police must have been advised by a medical professional that the driver may be suffering the effects of drugs. Where there has been a negative preliminary test but the police wish to investigate drugs other than cocaine or cannabis, they must obtain the advice of a doctor or health care professional before requiring a blood sample.
A blood sample may be required at the police station or at a hospital following arrest.
How can I tell if I am over the limit for drugs?
If you have taken a drug, there is no way of being certain that the drug has left your system. Attempting to use timeframes commonly associated with alcohol is not advisable as most illegal substances stay in your bloodstream longer than alcohol. If you are now – or have recently been – a regular user of cannabis, the amount of the substance in your system will have built up over time, meaning it will take longer for you to fall below the legal limit.
Under what circumstances can the police require a blood sample from me?
Where a saliva swab produces a positive result, the police will arrest and detain the suspect. Whilst in custody, a blood sample will be taken, which is then sent off for laboratory analysis. If the police do not carry out a swab test, or if the police suspect that the driver of a vehicle may be over the limit for other drugs, they can require a doctor or healthcare professional to medically examine a person whilst in custody. If the doctor or healthcare professional advises the police that the person may be under the influence of drugs, the police are legally permitted to request a blood sample for laboratory analysis.
How else can I avoid a conviction if I have been charged with drug driving?
Police officers have varying levels of experience in dealing with drug driving. Offences that involve the provision of blood samples generally involve lengthier and more arduous procedures than those relating to breath samples. The police and CPS also do not always fully appreciate that a defendant is entitled to be provided with access to all of the information upon which any forensic analysis was based. Often this information is either not forthcoming or may reveal anomalies that cast doubt on the reliability of the result.
For example, through the disclosure of this information, issues recently arose in relation to one of the most commonly used laboratories. A criminal investigation was launched and the laboratory lost its accreditation for carrying out analyses in the future.
How do I decide what plea to enter to a drug driving charge?
The vast majority of evidence will not be provided unless – and until – a not guilty plea has been entered. If you are willing to accept that you committed the offence (even though the evidence has not been fully scrutinised) and that you will be disqualified, then you may wish to plead guilty. This will keep legal costs and fines to a minimum, and your disqualification will start as quickly as possible.
However, if you are not prepared to accept that you were over the drug driving limit and if you want to investigate possible defences before losing your driving licence, we would advise you to give serious consideration to entering a not guilty plea. Experience tells us that there are often defences available that can and do result in a conviction being avoided.
What Other Problems Could I Face?
Aside from the direct penalties associated with drug driving offences, there are other prevalent issues that motorists convicted of a drug driving offence may face.
Issues associated with drug driving offences include:
- Insurance Premiums – Upon being convicted of a drug driving offence, a driving ban will likely be enforced. Following the completion of this term, the guilty party may regain driving privileges if all relevant criteria to do so are met. One of the most significant barriers associated with a return to driving following a spent drug driving conviction is that of securing car insurance – the insurance company will ask for details of the conviction, and where insurance is able to be offered under the insurance company’s in-house policy, the costs will likely be significantly higher than that of the quotes that were able to be offered prior to the drug driving conviction.
- Potential Difficulties In Finding Employment – Roles that require the employee to operate a motor vehicle will ask for the licencing details of each applicant. Where the employer is able to see that an applicant has previously been convicted of a drug driving offence, the applicant could face difficulty in progressing an application for employment.
- International Travel – International Travel could be made more difficult following a drug driving conviction. This is because there are strict laws in many countries that argue against issuing travel visas to would-be foreign visitors with both spent and unspent convictions relating to drug use. The United States of America is an example that is often cited as being one of the most difficult countries to access following a drug related offence.
The offence of driving with excess drugs carries a minimum 12 month disqualification upon conviction. The length of disqualification imposed will be less dependent on the amount of drugs found in a blood sample than it is for drink driving and will be based on a wider range of factors such as whether there is evidence of serious impairment, whether there was passengers, whether other road users were placed at risk and if there was more than one.
Unfortunately if you have taken a drug there is no way of being certain how much of the substance is still your system. As concentrations of drugs vary significantly, it is even more difficult to predict how much of it remains than it is for alcohol. To make matters worse, most of the illegal substances stay in your bloodstream longer than alcohol.
If you are or have been a regular user of cannabis, the amount of the substance in your system will have built up over time meaning it will take longer for you to fall below the legal limit.
The body breaks down cocaine into a metabolite known as benzoylecgonine for which a separate limit has been introduced. Therefore if you have taken cocaine up to 3 days before your arrest you may still fall foul of the new drug driving laws long after the effects have worn off.
A preliminary saliva swab test is normally carried out at the roadside which tests for the two most common illegal drugs – cocaine and cannabis. It normally takes around 8-10 minutes for the result to come back.
If it positive the police will then arrest the suspect and detain them in custody in order for a blood sample to be taken which is then sent off for laboratory analysis.
If the police do not carry out a swab test or suspect that the driver of a vehicle may be over the limit for other drugs they can require a doctor or healthcare professional to medically examine a person whilst in custody. If the doctor or healthcare professional advises the police that the person may be under the influence of drugs they will then be able to require a blood sample for laboratory analysis.
It is important to note that, unlike for alcohol-related offences, the administration of a preliminary swab test or medical opinion is imperative to an excess drugs offence without which any subsequent requirement for blood would be unlawful.
After a blood sample has been taken it should be divided into two parts which both then need to be sealed securely. One the samples should be offered to the suspect so that it can be independently analysed. The police will then send it to one of the laboratories with whom it has a contract for drugs analysis.
After the police have taken a blood sample, it will take around two weeks for the results of an analysis to be made known. Our experience is that it normally takes 4-8 weeks from the date of initial arrest for a person to be charged if the result of the analysis comes back over the prescribed limit.
Yes, you will still be charged under these circumstances if the blood analysis comes back over the prescribed limit. However, it is a defence if you can establish that you were taking the drug according to the advice of a medical professional and that your driving was not impaired.
The excess drugs offence is still relatively new and many police officers do not have the same level of experience with it as they do with drink driving. Offences which involve the provision of blood samples generally involve lengthier and more arduous procedures than those which relate to breath samples. They also involve forensic evidence from the laboratory which tested the sample of blood. It is often not fully appreciated by the police and CPS that, should it be required, a Defendant is entitled to be provided access to all the information upon which a forensic analysis was based. Often this information is not forthcoming or where it is it may reveal anomalies that cast doubt on the reliability of the result. It was through the disclosure of this information that issues arose in relation to one of the most commonly used laboratories which has led to a criminal investigation being started and it losing its accreditation for carrying out further analyses in the future.
The difficulty you will face is that the vast majority of the evidence will not be provided unless and until a not guilty plea has been entered to the charge. If you are willing to accept that you committed the offence even though the evidence has not been fully scrutinised and that you will be disqualified then you may wish to plead guilty, keep your legal costs and fine to a minimum and start your disqualification as quickly as possible. On the other hand, if you are not prepared to accept you were over the limit and want to investigate possible defences before giving upon your driving licence then we would advise you to seriously consider a not guilty plea to the charge as experience tells us that there will often be defences available which can and do result in conviction being avoided.