The number of people being caught driving under the influence of drugs is increasing according to the latest figures from the Ministry of Justice. There were 10,215 cases of drug driving brought before the courts in 2018, compared with 5,368 during the previous 12 months. In some areas, such as Suffolk, police state those stopped driving under the influence of drugs is actually surpassing drink driving.

However, over 40 drug driving convictions were overturned in late 2018, and a further 10,500 cases are being re-examined after alleged manipulation of data at Randox Testing Services. Fifty more cases awaiting trial were dropped. In this case, Randox acted as a whistleblower on itself after it discovered members of its staff had been altering data.

One commentator stated he had never encountered forensic science failure “of this magnitude”.  The situation and its consequences highlight the need for those facing drug driving charges to seek the advice and representation of an experienced criminal defence lawyer.

The law around drug driving

Section 5A of the Road Traffic Act 1988 (RTA) states it is an offence to drive, attempt to drive or be in charge of a motor vehicle with a specified controlled drug in the blood or urine in excess of the specified limit for that drug.

Legal drugs

It can be unlawful to drive if you have taken legal and/or prescribed substances.  The crucial distinction between driving under the influence of illegal or legal drugs is it is unlawful to drive having taken illegal substances even if they have not impaired your driving.  For legal substances the prosecution would need to show they have affected your ability to drive.

Some prescribed medications and drugs can have a significant effect on the ability of an individual to drive, even if taken at the prescribed dosage.  The onus is on the driver to check with a pharmacist or their healthcare professional to verify if it is safe to drive after taking a particular drug.

According to the Drug Driving (Specified Limits) (England and Wales) Regulations 2014, legal drugs for which there is a threshold limit include clonazepam, diazepam, flunitrazepam, lorazepam, methadone, morphine, oxazepam, and temazepam.  Many of these are a category of drug known as benzodiazepines, which are commonly used to reduced anxiety, and are considered highly addictive.

Illegal drugs

There are 16 controlled drugs deemed illegal to have in your system when driving.  The threshold for the amount permitted in a person’s blood stream is extremely low.  The controlled drugs are; benzoylecgonine, clonazepam, cocaine, delta-9-tetrahydrocannabinol (cannabis), diazepam, flunitrazepam, ketamine, lorazepam, lysergic acid diethylamide, methadone, methylamphetamine, methylenedioxymethamphetamine (MDMA), and 6-monoacetylmorphine (heroin), morphine, oxazepam, and temazepam.  A maximum threshold is set for each of these illegal drugs, over which a driver would be deemed to have broken the law if caught driving, attempting to drive or in charge of a motor vehicle.  The treatment of amphetamines differs – authorities will balance any abuse with the medicinal requirement (if there is one).

It is crucial to understand that the threshold limits are set low, meaning that driving after taking even very small amounts may be a breach of the law.  Drivers must consider that it can take around two days for the traces (metabolites) of a substance such as cocaine to leave the blood, and up to two weeks in the urine for heavy users.

What is the police process for drug driving?

Field Impairment Assessment

Anyone suspected of driving, being about to drive, or in charge of a motor vehicle under the influence of an illegal or prescription drug above the threshold set will typically be given a Field Impairment Assessment (FIA).  During a FIA, the police will carry out a series of tests, including the Modified Romberg Balance test, walk and turn test, one-leg stand test, and finger to nose test.  You may also be screened to test for the presence of some drugs within your system such as cannabis and cocaine, via a police roadside drug kit.  Police will take you to the local police station for a blood test if they have reason to believe you are unfit to drive.

Police Station

If requested to attend a local police station for further testing, you will be asked to provide a blood sample.  You must provide ‘clear and unconditional’ consent to do so.  If you refuse to provide a sample, you risk being charged with failure to provide a specimen.  Officers will send your sample to an independent laboratory for analysis.

The penalties for drug driving

If found guilty of drug driving, you may face:

  • A driving ban of at least 12 months
  • An unlimited fine
  • Up to six months’ imprisonment

Under current guidelines, there is no option to reduce a driving ban by volunteering to take part in a rehabilitation course.  Those found guilty will also have their offence noted on their driving license for 11 years and will receive a criminal record.  They may also be subject to higher insurance premiums, travel options may be limited (to countries such as the United States), and their employer will have sight of the conviction.

What are the possible defences for drug driving?

There is a range of possible defences for drug driving, including:

  • The drug taken was prescribed or supplied in accordance with the Misuse of Drugs Act 1971 and taken according to the medical advice provided.
  • The drug was taken after driving
  • The drug was absorbed inadvertently – e.g. by being in close proximity to someone smoking cannabis – this may be handled as a ‘special reason’
  • A procedural error was made – i.e. specimens were not taken properly

In summary

If you have been charged with the offence of driving under the influence of drugs, whether illegal or prescribed, it is essential to seek specialist legal guidance from a criminal law Solicitor.  We understand the many possible defences which can be used and how to formulate a robust case to prove that there is no case against you.

If you have been charged with a criminal offence such as drug driving, our criminal law team can help.  You can contact us at  Alternatively you can click here to request a call back from your nearest Reeds office.

Stuart Matthews is a Senior Solicitor and Director of the firm.