An overview of drug driving

Today marks the fifth anniversary of the implementation of the drug driving offence, since it first came into force on 2nd of March 2015 in England and Wales. Despite the offence being in existence for 5 years, we speak to people every day who do not appreciate the major difference this legislation has made to those who partake in drug consumption. The main and most important change is the removal of any need for the police to prove that a driver was impaired when they drove.

Section 5A Road Traffic Act 1988 also introduced specified drug limits in the blood for numerous illegal and legal drugs.

There are two types of specified drugs, namely illegal drugs and legal prescription or over the counter medicinal drugs.

*Per litre of blood (µg/L)

You can legally drive your vehicle after taking these medicinal drugs only if you have been prescribed them; you are taking them in accordance with your prescription and they are not causing you to be unfit to drive.

You should check with your doctor first whether you can drive if you’ve been prescribed any of the above medicinal drugs in accordance to the UK Department for Transport guidelines on drugs and driving.

When the drug driving offence was introduced, the government took a zero-tolerance approach regarding the above illegal drugs. Their limits were set at a very low level where they assured any allegation of accidental exposure can be ruled out e.g. a passive inhalation of cannabis.

There are no specific sentencing guidelines based on drug levels for the offence of drug driving as there is with drink driving. The government have been unable to set a clear-cut guide based on how far over the specified drug limit a person is, we expect because there are no links to impairment with the limits in place. There are also too many different factors which would need to be considered such as physical characteristics, individual’s metabolic rate, tolerance, and food and drink intake which would influence the individual’s blood concentration.

If you are stopped by the police on suspicion that you have driven a vehicle under the influence of drugs the police could ask you to perform a Field Impairment Test to assess whether your driving was impaired. However, since the introduction of the much simpler drugalyser devices, it is far more likely that the police will use a roadside drug kit (a swab or a wipe) to check if you have cannabis and/or cocaine in your system.

If the roadside drug test is positive or you have failed the Field Impairment Test you will be arrested and taken to a police station where your blood will be taken by a doctor or a health care professional. Your blood sample will be sent off to a laboratory for an analysis to establish whether you were over the limit set for that drug.

If you are convicted of drug driving the court must sentence you to a mandatory minimum 12 months disqualification (which will increase dependant on aggravating factors), an unlimited fine, community order or even up to 6 months in prison (depending on the seriousness of the offence and your previous convictions) and a criminal record which will stay visible on your driving record for 11 years.

Your conviction may also impact on the costs of your car insurance, your employment or potentially your status in the UK if from abroad or your visa application to other countries such as America.

If you have been released under investigation pending the analysis of your blood sample, the Crown Prosecution Service (‘CPS’) have 6 months from the commission of the offence to charge you.

This “limbo” period can be incredibly stressful if you do not have a plan for if/when the next step takes place. We always suggest seeking specialist advice from the outset, even before the CPS communicates their decision to you so we can prepare your case, preserve evidence and offer guidance and support. In more recent times, we have seen long delays (5 months) before a charge is communicated and so getting us on board at the earliest stage is best practice so that any issues caused by memory loss can be prevented. This is especially if it is highly likely that your blood sample is expected to come back over the limit.

If you receive a postal requisition requiring you to attend court regarding a drug driving matter, you should immediately seek advice from a member of our specialist motoring defence team.