Driving with excess drugs
Until relatively recently, drug driving charges were relatively rare. The offence of driving whilst unfit through drugs required proof that a person had taken drugs and also that there driving was impaired by them. There was a perception on the part of the authorities that people who used drugs were being allowed to avoid charges due to insufficient evidence of the effect of the drugs in their system. 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, some of them controlled substances such as cannabis, MDMA and cocaine. Other limits were introduced for prescription drugs such as diezapam. 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|
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.