New sentencing guideline for the drug driving (specified limit) offence

As of 01 July 2023, we finally have a definitive sentencing guideline in place for the offence of drug driving (driving a motor vehicle whilst over the specified drug limit), over 8 years after the law came into force.

Until now, the Courts were sentencing drug drivers with reference to a guidance document which did not have the same authority as a definitive guideline.

There were concerns that Judges and Magistrates would sentence motorists in the same manner as with excess alcohol cases. This would most certainly not be appropriate given that the drink driving sentencing guidelines were created with reference to the likely effects of alcohol on driving ability, whereas the limits in place for drug driving were set at almost zero tolerance levels with an appreciation that the existence of the drug in a person’s blood did not necessarily mean that their manner of driving would have been affected.

How sentences for drug driving were previously arrived at:

Previously, the sentencing council guidance document suggested the following sentencing principles:

• Maximum: Unlimited fine and/or 6 months imprisonment
• Must endorse and disqualify for at least 12 months
• Must disqualify for at least 2 years if offender has had two or more disqualifications for periods of 56 days or more in preceding 3 years
• Must disqualify for at least 3 years if offender has been convicted of a relevant offence in the preceding 10 years.

The starting point was a Band C fine and a disqualification of 12 – 22 months for the least serious cases.

More serious cases, deserving of either a community or custodial sentence element were determined with reference to whether there existed factors that increased the seriousness of the offence, or “aggravating factors”.

The following were considered factors that increased the seriousness of the offence:

• Evidence of another specified drug or of alcohol in the body
• Evidence of an unacceptable standard of driving
• Driving (or in charge of) an LGV, HGV or PSV
• Driving (or in charge of ) a vehicle driven for hire or reward

The following were considered to be aggravating factors:

• Previous convictions having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence and b) the time that has elapsed since the conviction’
• Location e.g. near school
• Carrying passengers
• High level of traffic or pedestrians in the vicinity
• Poor road or weather conditions

The new, official sentencing guideline – How drivers will be sentenced moving forwards:

Now that there has been sufficient time to consider the data gathered by the Department for Transport, alongside evidence gathered via a public consultation, a definitive guideline is now in place.

The guideline can be found here.

The new guideline more explicitly states which offences are considered “relevant offences”, i.e. those to be taken into consideration when extending the minimum length of disqualification from 1 year to 3 years. These offences are as follows:

• causing death by careless driving when under the influence of drink or drugs
• driving or attempting to drive while unfit
• driving or attempting to drive with excess alcohol
• driving or attempting to drive with concentration of specified controlled drug above specified limit
• failing to provide a specimen where that is an offence involving obligatory disqualification
• failing to allow a specimen to be subjected to laboratory test where that is an offence involving obligatory disqualification

Helpfully, the new guideline stresses that it is not possible to draw a direct connection between the levels of drug detected, and the level of harm. This should discourage the practice of sentencing more harshly based on the amount of drug found in the blood as we have seen some Courts attempting to do over the preceding 8 years since the introduction of the specified limit drug driving offence.

Instead, the relevant factor now is whether there were obvious signs of impairment or evidence of an unacceptable standard of driving.

The new guideline directs Courts to determine the offence category with reference to levels of culpability and harm.

On offence which has a lower level of culpability and harm associated with it would fall into the least severe sentencing category, for which a disqualification of between 12 – 16 months would be imposed alongside a fine.

An offence which has either a greater level of culpability or harm associated with it would fall into the middle category for which a disqualification of 17 – 28 months would be imposed alongside community service.

An offence which had a greater level of culpability and greater harm associated with it would fall into the most serious sentencing category, for which a disqualification of 29 – 36 months would be imposed alongside either a high level community order or a custodial sentence. Indeed, the starting point for a driver who falls into this sentencing category is 12 weeks in custody. Strong mitigation would be needed to avoid a custodial sentence in these circumstances, and you should contact us as a matter of urgency if you think your case falls into this sentencing bracket.

The only factors that the Court should take into account when determining if your case is one that has higher culpability associated with it are as follows:

• Driving or attempting to drive a LGV, HGV or PSV etc
• Driving or attempting to drive for commercial purposes
• Evidence of another specified drug or of alcohol in the body (whether or not the ‘other’ specified drug or alcohol is present at a level that could give rise to separate charges)

The only factors that the Court should take into consideration when determining if your case is one that has a greater level of harm associated with it are as follows:

• Obvious signs of impairment
• Evidence of an unacceptable standard of driving

Are drug drivers likely to receive a harsher or more lenient sentence as a result of the new guideline?

Whilst the guideline underlines that the correct approach is not to sentence with reference to the amount of drug found in the blood, two additional, subjective elements are introduced into the sentencing criteria, namely, the standard of driving and signs of impairment, the latter being the most problematic.

What is meant by “signs of impairment”? Appearing nervous? Fidgety? Visibly trembling? These are typical behaviours exhibited by normal members of the public who are anxious during their interactions with the police. How about lethargic? Overly calm? Overly chatty? These have all been used to suggest impairment on drug driving cases we’ve acted on and are behaviours many of us display in our daily lives, depending on a variety of external factors such as how much sleep we’ve had, and how we personally deal with a stressful situation, not to mention whether our brains function the same as “neurotypical people.” It’s worth noting that almost all cases will involve some suggestion of impairment as this is usually the reason that the officer will give for drug testing you in the first place.

Now, let’s look closer at the factor “evidence of another specified drug or of alcohol in the body (whether or not the “other” specified drug or alcohol is present at a level that could give rise to separate charges)”. Lets say you were pulled over and breath tested. You passed the breath test by giving a reading which was under the limit (e.g. 12mg, the legal limit being 35mg), however, you provided a positive roadside drug wipe and were charged with drug driving. Going off the new guidelines, you’re now in at least the middle sentencing bracket for which the starting point of sentence is community service and a ban of 17 – 22 months. Couple this with the officer’s perhaps, inaccurate opinion that you displayed obvious signs of impairment, and you’re now in the most severe sentencing category and looking at a real risk of custody.

Summary

It’s encouraging that we now, finally, have a definitive guideline for drug driving, which should, in theory lead to a more uniform approach to sentencing. However, the subjective elements that have been introduced for consideration will likely lead to significantly harsher sentences based on the particular form of words used by the officer regarding his description of you and your driving. It’s now more important than ever to consult with a specialist drug driving expert if you are accused of drug driving with a proportion of a controlled drug above the specified limit. At Ashworth Motoring Law, we have particular expertise in defending drug driving allegations and in achieving the best possible outcome for those who wish to plead guilty. If you, or someone you know, have been arrested for drug driving, call our free advice line on 0330 33 22 770 to speak to a specialist drug driving solicitor who can advise on the law and let you know if we can help.

Who we are

Ashworth Motoring Law is a multi-award winning, highly specialised criminal law firm which focusses solely on representing motorists who are accused of committing driving offences such as drug driving. Our specialist solicitors are experts in all aspects of motoring law, and our Managing Director, Alison Ashworth, has particular expertise in defending drug driving offences. Alison was instrumental in campaigning against, and raising awareness of the new Section 5A drug driving offence before its introduction in 2015, appearing on the BBC and ITV News, and has successfully represented drivers from all walks of life in relation to this charge. If you’d like Alison to personally look into the details of your case, please ask to be put through directly to her when calling our office on 0330 33 22 770.