STILL no Sentencing Guidelines for Drug Driving!

Expert opinion by Specialist Drug Driving Lawyer, Alison Ashworth – Managing Director of Ashworth Motoring Law.

Over one year since the new “specified limit” drug driving law was introduced and there are STILL no sentencing guidelines in place to regulate the way that offenders are punished.

Sentencing guidelines (such as the attached with reference to drink driving) are used by Judges and Magistrates to help them decide what sentence to impose when a person either pleads guilty or is found guilty of an offence.

Prior to the introduction of the new offence, I contacted the sentencing council to ask when the guidelines for the new drug driving offence would be put in place. I was told to expect them in at least 2016.

Having seen reports of significantly different sentencing approaches between different Courts as I predicted in this BBC radio interview that I gave on the day that the new law came into force, I recently contacted the sentencing council again to find out how soon the guidelines were likely to be released.  I was told that their two year plan does not include work on this guideline but that it is anticipated that it will be added to the work plan in the future. The sentencing council added that as with any relatively new piece of legislation there is the need to allow a certain period of time to pass before producing guidelines as the production of a guideline relies on research and evidence.

The concern that I have is that Judges and Magistrates are, in the meantime tempted to sentence offenders in a similar manner to guidelines which are available. Take the drink drive limit for example. Our drink driving limits are amongst the highest in Europe. A person who is three times over the limit is likely to be showing some pretty significant signs of intoxication, and their manner of driving along with the level of risk that they pose to themselves and to the public is likely to be significantly effected.

Now let’s look at the drug driving limits. The drug driving limits have been set so low that even one puff on a joint could be enough to put someone over the limit, despite them feeling no effects from the drug, and their manner of driving being perfectly normal. In fact the Governments own panel of experts suggested that a person would be technically fit to drive with twice the current level of THC (cannabis) in their system, although the Government chose to disregard the expert panel’s advice and pursue the current, almost zero tolerance limits for every single illicit drug listed under the legislation.

There have in fact been reports of individuals who have been caught 25 and 50 times over the drug driving limit yet showing no obvious signs of having taken a drug with perfectly normal standards of driving.  If the same level of consumption was extended to alcohol, the person would most likely be either in hospital or dead. If they somehow managed to survive, then they would be facing the most serious sentencing category of the guidelines and would be facing a prison sentence because the level of impairment is so intrinsically linked to the amount of alcohol consumed .

There is a significant risk that motorists are being unduly punished with tangibly greater severity than is warranted, indeed the Courts have displayed a willingness to send drivers to prison for committing the new specified limit drug driving offence.

Whilst I do not condone drug driving, or drug taking, I do, as a defence lawyer have a passion for fighting against injustice and ensuring that my clients are treated fairly by the Courts. Although the overwhelming majority of my clients choose to plead not guilty to this offence after an initial investigation into the merits of their defence, I do have a duty to advise those who wish to plead guilty on the likely sentence that they could face. In the absence of the guidelines, and with the differing approaches which are being taken by the Courts, this continues to be a difficult task.

Is it fair to sentence a young cannabis user who was twice the legal limit for THC (cannabis) and who was not even remotely effected by the small amount that he took in the same way as a drink driver who was twice the limit and barely able to stand up? I certainly don’t think so.

When the guidelines are eventually produced, I would like to see a strong link between the expected level of impairment and the amount of substance in a person’s system, although by then it might be too late for the many who are left unrepresented in Court facing the lucky dip that appears to be the current sentencing approach in the meantime.

Article written by Expert Motoring Lawyer, Alison Ashworth; Managing Director of Ashworth Motoring Law Ltd.

Ashworth Motoring Law are experts in defending drug driving offences. If you have been charged with drug driving and would like to speak to a specialist drug driving solicitor about your case, call 0330 33 22 770 for free initial advice.  

Free legal advice for drug driving offences from the specialist drug driving solicitors at Ashworth Motoring Law

Listen again to our live radio interview on drug driving

Missed our latest interview about the law on Drug Driving?

You can listen again here:

In this interview, we explain why there’s been an 800% increase in drug driving arrests and highlight the low drug driving limits which were set for illegal substances under the Drug Driving Law which was introduced in March 2015.

If you would like more information about drug driving, or would like to speak to a specialist drug driving solicitor about your case, call 0330 33 22 770 or email enquiries@ashworthmotoringlaw.co.uk for free initial advice. Our drug driving experts regularly defend drug driving offences, in fact we have a 100% success rate in securing acquittals for this offence.

 

 

 

How the police test for drug driving

The Department for Transport has released figures from the Cheshire constabulary showing a 800% increase in arrests for drug driving.

The increased number of arrests is largely owing to the widespread use of so-called drugaliser devices which can detect drugs in a person’s system within as little as 8 minutes by analysing saliva. Previously, this preliminary indication was not available.

Under the old legislation, which is still in force today, a person would have to perform a series of impairment tests and would usually only be brought to the police station and face a blood test if they failed the impairment test .

The use of the drugaliser device is resulting in far more people being brought into custody following the identification of drugs in their system at the roadside.

On the 28th February 2016, the government announced that police forces have been given an additional £1 million to train officers, purchase drug screening equipment and pay for samples to be analysed

How does the roadside drug test work?

  • The drugaliser device works by analysing the driver’s saliva for the presence of drugs.
  • The device is placed into the driver’s mouth to obtain saliva cells.
  • The police officer then waits for the result.
  • The result will appear within 8 minutes.
  • If the device identifies drugs in the driver’s saliva then a positive result will appear as a line on the device, similar to a pregnancy test.
  • The roadside drug swabs can only currently test for cocaine and cannabis.

How are drugs other than cocaine and cannabis detected?

Until more comprehensive roadside testing devices are granted “type approval”, the police must rely on impairment tests to detect the possible presence of drugs other than cocaine and cannabis in a person’s system at the roadside. These tests include:

  • The Romberg test: which tests balance and judgement
  • The walk and turn test
  • The standing on one leg test
  • The finger to nose test
  • The pupil measure test: assessing the size of the pupils

Targeted approach to identifying drug drivers

The police are using a targeted approach based on statistics which show that young male drivers are more likely to drug drive.

To mark the one year anniversary of the new drug driving law coming into force, the government has launched an advertising campaign aimed at young male drivers.

If a police officer thinks that a driver is under the influence of drugs, they can ask them to take a roadside drugs test.  Alternatively, they can ask the driver to perform a police impairment test.

Failing or refusing the test will result in the person being arrested and taken to the police station where they will be asked to provide a blood test.   The driver would be prosecuted on the basis of a positive blood test rather than the preliminary indication provided by the roadside drugs test.

What are the drug driving limits and how long do drugs stay in your system?

Click here to view the drug driving limits.

Article written by expert drug driving solicitor, Alison Ashworth; Managing Director of Ashworth Motoring Law.

Alison Ashworth; Expert motoring lawyer and Director of www.ashworthmotoringlaw.co.uk

Ashworth Motoring Law are experts in defending drug driving offences. In fact, we have a 100% acquittal rate in defending drug driving offences. If you have been arrested for drug driving and would like specialist advice and representation by a drug driving expert, contact our free motoring law advice line on 0330 33 22 770 or email enquiries@ashworthmotoringlaw.co.uk.

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The drug driving limits and how long drugs stay in your system

On 02 March 2015, it became an offence to drive with certain drugs in your system above specified limits.  The Section 5A Road Traffic Act Offence requires only the presence of the drug above the specified limit to provoke criminal proceedings against the driver. Under the new offence, it is not necessary for the prosecution to prove that there was anything wrong with the person’s manner of driving; just the presence of the drug above the limit is enough.

What are the drug driving limits?

The drug driving limits have been set with reference to the amount of the drug “per litre of blood”. No drug driving limits have been set for urine; therefore if the driver cannot provide a sample of blood, they cannot be convicted of driving with drugs in their system over the specified limit.

The drug driving limits per litre of blood for all substances, legal and illegal are as follows:

  • Benzoylecgonine (a cocaine metabolite) 50
  • Clonazepam 50
  • Cocaine 10
  • Delta-9-Tetrahydrocannabinol (cannabis) 2
  • Diazepam 550
  • Flunitrazepam 300
  • Ketamine 20
  • Lorazepam 100
  • Lysergic Acid Diethylamide (LSD) 1
  • Methadone 500
  • Methylamphetamine 10
  • Methylenedioxymethamphetamine (MDMA)10
  • 6-Monoacetylmorphine (Heroin) 5
  • Morphine 80
  • Oxazepam 300
  • Temazepam 1000

It’s important to remember that the above limits are specific to the newer Section 5A Drug Driving Offence, not the old Section 4 Driving whilst Unfit through Drugs Offence which is still in force.

Under the old offence, the driver need only provide a sample of blood or urine which identifies the presence of a drug in the person’s system regardless of the amount of the drug, providing there is a causal link between the presence of the drug and the person’s manner of driving.

What do the drug driving limits actually mean?

Many motorists are struggling to work out what the drug drive limits actually mean.

It’s impossible to say with any certainty how much of a drug can be consumed before reaching the specified limits.

However, the drug driving limits for illegal drugs have been set to practically zero tolerance levels. It is said that as little as one puff on a joint could be enough to put someone over the limit.

Whilst the drug driving limits are deemed to be zero tolerance limits, they have been set with reference to scientific guidance to allow for accidental consumption such as passive smoking of cannabis.

The drug driving limits for legal drugs have been set above normal therapeutic doses; therefore if the driver has taken their medication in accordance with usual prescribing instructions then they are unlikely to be over the limit. It they have been prescribed a dose which is above the specified limit, then a medical defence will be available to them provided the they have taken their medication in accordance with the prescribing instructions of their medical professional.

How long do illegal drugs stay in your system?

It’s impossible to say with any certainty how long you would need to wait after taking drugs before you’d be deemed under the limit again. There are far too many variables.

The length of time which is required for a drug to leave your system depends on lots of different factors. These factors include the strength and amount of drug taken, the timeframe during which the consumption of the drug took place, and whether the drug was mixed with anything else. Other unique individual characteristics also play a crucial factor such as your metabolic rate, height, weight and gender.

Although bodily absorption rates differ from person to person, it is possible to suggest rough guidelines as to how long illegal drugs typically remain detectable in a person’s system.

Of the illegal drugs covered by the offence, the typical number of days that traces of a drug will remain in your system for are as follows:

  • Cannabis: 2 – 3 days for one off use (potentially up to two months for chronic users)
  • Cocaine : 12 hours – 3 days
  • MDMA: 1 – 4 days
  • Heroin: 2 – 5 days
  • Ketamine: 2 – 4 days
  • LSD: 1 – 3 days
  • Crystal Meth: 1 – 4 days

However, the above guidelines relate to the length of time that traces of the drug would remain in your system for. The guidelines do not necessarily relate to the amount of time that the drug would remain in your system at a level above the specified limit.  In instances such as cannabis for example, the specified limit under the offence relates only to the active delta-9 ingredient, which remains detectable in a person’s system for far less time than the cannabis metabolite.

If you’ve taken an illegal drug then it’s best to wait a significant period of time before getting back behind the wheel of a car.

What happens if I’m caught with an illegal drug in my system above the specified limit?

If you provide a blood sample which identifies the presence of one of the controlled drugs above the specified limit, then you will be charged with drug driving and summonsed to attend Court.

The Courts take drug driving offences very seriously, and a conviction would have long lasting consequences.

If you plead guilty, or if you are found guilty, you would face:

  1. A minimum 12 month disqualification from driving
  2. A fine of up to £5,000
  3. Possibly up to 6 months in prison or community service
  4. A criminal record
  5. Problems travelling to certain Countries like the USA
  6. The drug driving conviction would appear on your driving licence for 11 years
  7. Significant increases on your motor insurance premiums

A conviction for drug driving could have a serious impact on your future career options. Employers of professional drivers would want to look at your driving record and will see that you have a conviction for drug driving. Certain professional bodies will require you to disclose the conviction, and could stop you from practicing in your field.

Can a drug driving offence be defended?

If you have already been accused of drug driving, then all is not lost. There are many defences to a drug driving allegation. So much so that we have a 100% acquittal rate in defending drug driving offences. If you have been arrested for drug driving and would like to speak to an expert drug driving solicitor, call our free advice line on 0330 33 22 770 for free initial legal advice. We are always happy to discuss your case and can often identify potential defences within minutes. Lines are open round the clock so get in touch whenever’s best for you.

Article written by Drug Driving Expert, Alison Ashworth; Managing Director of Ashworth Motoring Law.

Alison Ashworth; Expert motoring lawyer and Director of www.ashworthmotoringlaw.co.uk

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Live radio interview about Drug Driving

The department for transport released figures this week from Cheshire constabulary showing a 800% increase in arrests for drug driving.

Managing Director Alison Ashworth will be giving a live radio interview at 4:50pm today to discuss the Drug Driving Law, and possible reasons for the increased number of arrests.

If you still have unanswered questions about the Drug Driving Law which was brought into force one year ago this week, tune into BCB Radio at 4:50pm today, 4th March 2016 to find out more.

Alison Ashworth; Expert motoring lawyer and Director of www.ashworthmotoringlaw.co.uk

Ashworth Motoring Law are specialists in defending Drug Driving Offences. If you have been accused of drug driving, or any other motoring offence and would like expert advice and guidance, call our free motoring law advice line on 0330 33 22 770 to speak to a specialist motoring law solicitor today.

Free legal advice for drug driving offences from the specialist drug driving solicitors at Ashworth Motoring Law

One Year on, the legal System is STILL not ready for the Drug Driving law, Major problems remain

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.

Misleading figures

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 cannabis and cocaine-alyser

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 can 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 £1 million 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 ridiculous 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 before.

Flawed procedure

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.

Alison Ashworth; Expert motoring lawyer and Director of www.ashworthmotoringlaw.co.uk

Need help?

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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