Drug Driving Offences

Revised 20/08/18|Legal Guidance, Drug offences , Driving offences

Headlines

This Guidance highlights the considerations, including public interest, that Prosecutors must consider when reviewing drug driving cases. This includes the use of expert witnesses. Prosecutors should also see guidance on Specialist Defences / Challenges under Drink Driving Offences.

Prosecutors should also be aware that operational guidance on specialist defences can be found on the Knowledge Hub in relation to:

- Defence challenges on drink / drug drive offences and how to address them
- Specialist challenges on drink / drug drive offences (which covers some additional points)
- Common disclosure requests and how to approach them
- Schedule of helpful authorities on defence challenges 

CPS policy lead

Kwame Biney, kwame.biney@cps.gsi.gov.uk; 0792 0765142   

Contents

 

Introduction

This guidance deals with driving, attempting to drive or being in charge of a motor vehicle, with a concentration of a specified controlled drug in the body, above the specified limit.

The offence, which is summary only, is contained under Section 5A Road Traffic Act 1988, which came into force on 2 March 2015.

The Offence

The impetus for this offence is to tackle the situation where a driver has taken drugs and drives but has avoided being prosecuted under Section 4 RTA 1988 – ‘Driving whilst unfit’, due to insufficient evidence to prove impairment.

Driving/Attempting to Drive or being in charge of a motor vehicle

Under Section 4(1) of the Road Traffic Act 1988 it is an offence if a person drives or attempts to drive a motor vehicle on a road or other public place whilst unfit through drink or drugs. Similarly, Section 4(2) makes it offence if the person is in charge of a motor vehicle when under influence of drink or drugs.

Prosecutors need to be mindful of the need to distinguish between “attempting to drive” and being “in charge”. An attempt must be “more than merely preparatory” to the act of driving. In Mason v DPP [2009] EWHC 2198 (Admin), a car owner had been robbed at knifepoint as he opened his car door. The robber drove off in the car. The car owner phoned the police who told him to come to the station and make a report. When he did, the officer smelt alcohol on his breath and arrested him for attempting to drive whilst over the limit. He later blew 68ug in breath. The Court held that merely opening a car door was merely preparatory to the act of driving, and not an actual attempt to drive it.

A person remains in charge of their vehicle until they have transferred control to another, for example by handing over the key. Equally, if the person was some distance from the car, in such circumstances that they had no intention of re-asserting control of the vehicle.

Specified Limits

There are currently 17 drugs listed in the related Drug Driving (Specified Limits) (England and Wales) Regulations 2014 and the Drug Driving (Specified Limits) (England and Wales) (Amendment) Regulations 2015. The levels have been set and stated in the regulations. They are based on figures from a panel of experts that has considered such factors as "accidental exposure". It is important to note that this offence is not a "zero tolerance" offence, as the limits for the illegal drugs are low but with sufficient tolerance to allow for accidental exposure.

The police will carry out a road side test, much in the same way as the screening breath test for alcohol. Current testing devices used under section 6C RTA 1988 only test for Delta-9-tetrahydrocannabinol (the active ingredient of cannabis) and cocaine. If the result is positive the suspect can be arrested and taken to a police station, where an evidential specimen of blood will be required.

The police have been advised to continue gathering evidence of impairment to support the investigation of the Section 4 offence of ‘Driving whilst unfit’. Whilst cannabis and cocaine are the most prevalent drugs amongst drug-drivers, the majority of specified drugs and other drugs and intoxicants cannot be tested for at the roadside.

Preliminary Impairment Testing (PIT), permitted by Section 6B RTA 1988, should therefore continue to be used whenever possible and appropriate. Section 5A(2) states that the specimen will be blood or urine. However, as there are no specified limits set for drugs in urine, the specimen has to be blood, and this is reflected in police procedure. If the suspect refuses, without reasonable excuse to provide a specimen of blood, the appropriate charge will be one of "Failure to provide" contrary to Section 7(6) RTA 1988. If the suspect has a genuine medical reason for failing to provide a specimen of blood, a Section 5A offence cannot be pursued. This would not preclude the continuation of the evidence gathering for Section 4 RTA 1988, as the requirement for the presence of a drug does not need to exceed a limit and the drug can be discovered in specimens of urine. This is why police will investigate both offences where evidence of impairment is available.

It is important to note the interplay between Sections 4 and 5 RTA 1998. Where the level of drugs exceeds the specified amount, the appropriate charge would be Section 5A RTA 1988. If the level of the drug does not exceed the specified limit but where there is sufficient evidence of impairment, the charge will be contrary to Section 4 RTA 1988.

Drug driving charges where there is more than one drug detected

Consideration as to whether to pursue two or more charges will depend on the circumstances of the case. High readings, in relation to two or more drugs, may well justify the pursuit of two or more charges, particularly if the consequences of any driving were serious. However, there will be cases in which the Court may well look to impose a nominal penalty for a second drug, so there will be cases in which a plea to one charge will suffice.

As there are different limits for different drugs, a charge that included two or more drugs would arguably be bad for duplicity. Therefore, there should be separate charges for separate drugs.

There is also a specific defence under Section 5A(3), relating to medical treatment/prescription (below). Given that a Defendant may have a medical reason for drug A but not drug B, it would be sensible to charge separate drugs separately. 

Statutory Defence

Section 5A(3) provides a statutory defence for the driver, if it can be shown that the drugs had been prescribed or supplied and the driver had adhered to the advice of the person by whom the drug was prescribed or supplied. If this is raised by a Defendant, the Court must assume that the defence is satisfied, unless the Prosecution proves beyond reasonable doubt that it is not. There is no reverse burden of proof.

The statutory defence does not limit the ability of the police to continue with the offence under Section 4 RTA 1988, where the statutory defence does not apply.

Section 5A(6) also provides a statutory defence for the driver if charged with an offence by virtue of subsection (1)(b) – ‘in charge of a motor vehicle on a road or other public place’, if it can be shown that that there was no likelihood of the driver person driving the vehicle whilst the proportion of the specified controlled drug in their blood or urine remained likely to exceed the specified limit for that drug.

Prosecutors should see section on Specialist Defences / Challenges (link) under Drink Driving Offences.

Prosecutors should also be aware that operational guidance on specialist defences can be found on the Knowledge Hub in relation to:

  • Defence challenges on drink / drug drive offences and how to address them
  • Specialist challenges on drink / drug drive offences (which covers some additional points)
  • Common disclosure requests and how to approach them
  • Schedule of helpful authorities on defence challenges

Public Interest

There is a very clear public interest in preventing, detecting and prosecuting those who consume drugs and then drive. This is due to the clear danger posed to life, limb and property by such behaviour. Where an individual has driven a motor vehicle and the evidence is sufficient to support a charge under Section 5A, a prosecution will almost invariably follow.

Sentencing

There are no definitive sentencing guidelines yet for this offence. However, the Sentencing Council has produced guidance to assist those sentencing offences under Section 5A Road Traffic Act 1988. The guidance includes aggravating and mitigating factors, as well as factors that increase or reduce the seriousness of the offence.  It is important to note that this guidance does not carry the same authority as sentencing guidelines and sentencers are not obliged to follow it.

If the Defendant accepts the presence of alcohol or another specified drug, this information can be placed before the Court, and taken into consideration in accordance with the sentencing guidelines. If the Defendant does not accept this to be the case, unless the Defendant is charged and convicted, the matter cannot be taken into consideration as an additional seriousness factor.  It should be noted that if the presence of another specified drug or alcohol is likely to impact on sentence, the public interest is likely to favour an additional charge. 

Sample Testing

If a blood specimen has been taken, the police will ensure that it is stored, packaged and transported in the appropriate way. This is especially important in circumstances where cannabinoids are involved, as the breakdown rate is very fast. The sample should ideally be taken within one hour, in order to be reflective of the level at the time of the offence. The specimen of blood taken will be divided and part provided to the suspect if requested. The suspect will be given a leaflet as to what he must do with this sample to maintain its integrity. There may be challenges to the suspect’s specimen, as the concentration will reduce if it is not kept refrigerated.

The testing of both specimens must be at an accredited laboratory to ensure that the criminal justice system can be satisfied whether a person is above the specified limit. The testing is based on the same methodology as for alcohol. This is in order to allow for margins of error. The testing of specimens must be at an accredited laboratory to ensure that the criminal justice system can be satisfied whether a person is above the specified limit. Guidance issued by the Home Office and the office of the Forensic Science regulator requires analysts to allow a margin of error and the level reported will allow for that.

Forensic Science Regulator's Guidance

The Forensic Science Regulator (FSR) together with accredited Forensic Science Providers (FSPs) has developed a standard approach as to how measurement uncertainty should be accounted for when reporting analyses in support of the Section 5A offence.

The FSR has also published guidance on the comparison of analytical results to limits created under the provisions of Section 5A RTA 1988.

Available to download

Full Guidance - Drug Driving Offences

Further reading