One year on – Major problems with the drug driving law
Critical analysis of the Section 5A Road Traffic Act Drug Driving (Specified Limit) Offence by Expert Motoring Law Solicitor, Alison Ashworth.
One year after the Section 5A Road Traffic Act Drug Driving Law was introduced, new figures released by the Department for Transport suggest a 800% increase in drug driving arrests in the Cheshire region alone.
As a specialist Motoring Lawyer who deals predominantly in defending flawed motoring prosecutions I had a number of concerns about the new drug driving law, and identified a number of issues with it prior to its introduction. I concluded that the legal system was not ready for the new law. One year on this still seems to be the case. In fact, the last year has thrown up a whole set of new legal issues concerning this controversial legislation.
Firstly, I am somewhat sceptical about the figures which have been provided by the Department for Transport. The headline figure makes reference to the number of arrests for drug driving. What I would like to know is the number of people who were arrested but not charged? My sources within the drug testing industry suggest that there is a high potential for roadside drug testing device to provide a ‘false positive’ result. It seems that the devices are set to pick up the cannabis metabolite which remains in a person’s system far longer than the active Delta 9 THC cannabis which is covered by the legislation. A person can only be charged on the basis of the active Delta 9 THC in their system, NOT the metabolite. There may well have been an increase in the number of arrests, but I’d bet there’s also an equally huge increase in the number of innocent drivers who are pulled over, arrested, taken to a police station, detained for the purpose of taking a blood sample and then ultimately released once the analysis highlights an absence of the active Delta 9 THC in their bodies.
The drugwipe that doesn’t ‘wipe’ for all drugs
Still, the devices which the police are using to test for drugs at the roadside can only test for cocaine and cannabis. Abusers of prescription medications and users of any of the other illegal drugs could therefore drive away scot-free after passing the roadside test, or be taken to the police station if they display significant signs of impairment as per the original Section 4 Road Traffic Act Driving whilst Impaired through Drugs Offence.
Lack of equipment
In a number of cases, the equipment simply hasn’t been there at the roadside as planned. Some drivers have faced long waits for equipment to be delivered to the relevant location, or they have been taken to the police station for the purpose of taking the test. Police forces have now been given an additional £1million to purchase drug screening equipment, train officers and pay for samples to be analysed.
Lack of labs who can analyse the blood sample for drugs
The new drug driving law was enacted before there were sufficient labs available to independently analyse the driver’s sample. When the law came into force, there was only one lab in the whole country which could test samples for the full spectrum of drugs covered by the offence. The other labs were authorised only to test for cannabis and cocaine. All defendants who provide a blood sample for analysis at the police station are entitled to have their own sample independently analysed. With only one lab in the Country testing for the additional drugs, if the Prosecution’s sample was analysed by this lab, there was nowhere else to independently analyse the defendant sample. Defendants were being robbed of a crucial right. This was a huge injustice. Even now, the options available to defendants to have their own samples independently analysed are desperately scant, and in my view this lack of choice remains wholly unacceptable.
You cannot be convicted of the Section 5A Drug Driving Offence if you cannot provide a blood sample
This is perhaps this most obvious issue with the new drug driving law. You cannot be convicted, or even charged with Section 5A Drug Driving if you cannot provide a blood sample. The drug driving limits make reference to the amount of substance in blood alone. There is not yet an approved method of testing urine for the very specific drug amounts covered by the legislation. The polices’ own forms direct officers to take no further action if the person is unable to provide a blood sample. However, having won a case where this was an active issue, I know that the police are likely to, instead, consider the old Section 4 driving whilst impaired route of identifying evidence of impairment. Under the old Section 4 impaired driving route there is no relevant drug driving limit, therefore it is permissible to rely on the results of urine analysis. All that is required under the old offence is the presence of a drug in the system and a causal link between the presence of the drug and the person’s driving.
What the drug driving limits actually mean
There is still a fundamental lack of guidance about the drug driving limits themselves.
Whilst drug driving limits have been provided, a lack of information from the Government has left drivers completely bewildered as to what amount of drugs would result in exceeding the limit. Also, drugs can remain in a person’s system much longer than alcohol, often long after the effects have worn off. However the risk of being caught drug driving “the morning after” consuming drugs is far less publicised than the dangers of “morning after drink driving”. Almost all of the Section 5a Road Traffic Act Drug Driving enquiries which I deal with involve drivers who have been charged with the offence despite taking a drug many hours or even days before.
As with the more established motoring offences such as drink driving, or driving whilst unfit through drink or drugs, there are in many instances of grave failings by the police when investigating this latest offence. Failings that are so severe that they result in the case being thrown out of Court.
The Section 5A drug driving offence is still a mess
Bearing in mind that one single puff on a joint is said to be enough to put someone over the drug driving limit, and a conviction for this offence would result in a minimum 12 month driving ban, fine, possible prison sentence and a criminal record, my view is that there are still significant failings with the Section 5A Drug Driving (Specified Limit) Offence. Of course, we need drug driving laws to protect the public from drugged drivers who are a danger to the public, but when a conviction for this offence could destroy a person’s whole life, more should be done to ensure that those who are suspected of committing the offence are treated fairly, and greater attention needs to be placed on raising awareness of the low levels of drugs in the body that can put a person over the specified limit in the first place.
Article written by Drug Driving Expert, Alison Ashworth; Managing Director of Ashworth Motoring Law.
If you’ve been arrested for drug driving and would like expert advice and representation, call our motoring law advice line on 0330 33 22 770 for free initial advice from a specialist drug driving solicitor. Ashworth Motoring Law are experts in defending drug driving offences, in fact our Managing Director Alison Ashworth has a 100% success rate in securing acquittals in drug driving cases.
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