Drug Driving; the legally intoxicated elephant in the room!
BY JMW Solicitors
For many a year, successive Governments have been trying to find a suitable way to deter people from ‘drug driving’. With a rising number of ‘legal highs’ available and mounting concern regarding the abuse of prescription drugs this ‘problem’ is now ranking high up on the Government’s agenda. The Justice Bill, which has specific clauses dealing with this issue, will be touched upon in the Queen’s Speech next month. Police station and roadside drug testing equipment will follow hot on the heels of this announcement.
On 16 June 2010, Sir Peter North issued a ‘Report of the Review of Drink and Drug Driving Law’ –
It now appears that the Government is paying heed to some of Sir North’s recommendations.
Existing drug driving law
Section 4 (1) of The Road Traffic Act 1988 makes it a criminal offence for a person to driving or attempt to drive a vehicle on a road or other public place, when they are unfit to drive through drink or drugs
The Police have the power to arrest someone on suspicion of drug driving even if the drugs they have taken are legal. The law defines a ‘drug’ as being ‘any intoxicant other than alcohol’. Basically, if a person has taken a substance which is neither a drink nor food and it is alleged to have affected the control of their body, this could be classed as a drug.
In my opinion the current legislation is perfectly adequate when dealing with cases involving so called ‘legal highs’ and all other types of ‘drug driving’ cases. Some may argue that the current ‘Field Impairment Test’ (FIT) is too onerous to administer, which is the real reason why the number of arrests for drug driving is relatively low in comparison to the number of arrests for drink driving.
In respect of roadside screening, Section 6c of The Railways and Transport Safety Act 2003 (as found under Schedule 7 of the act) provides the Police with the power to administer a roadside drug screening test. Once the technology is available it is possible that the FIT may become obsolete.
Zero Tolerance
At the moment, unlike drink driving there is no definitive legal drug driving limit. ‘Zero Tolerance’ has been mooted as it appears to work effectively in countries such as Australia, although it has appeared to have had less effect in Sweden with regards to deterring re -offenders.
An obvious problem in implementing ‘Zero Tolerance’ would be with regards to legal drugs. If I take two Paracetamols for a headache does this mean that I am unfit to drive? Murmurings emanating from Whitehall suggest that a legal ‘drug limit’ will be adopted.
Potential Problems?
By introducing a legal ‘drug limit’ the Government is essentially trying to do away with the requirement for the police to demonstrate ‘impairment’. In order for this to work any ‘drug limit’ would have to correspond with the likely limit that would be exceeded following recent drug use.There is no point testing for a drug which someone might or might not have taken several days or weeks ago. This is unlikely to have any impact on their driving and to be prosecuted on the basis of ‘historic’ drug abuse would be inherently unfair.
With so many drugs available – both illegally and legally – will the technology that is to be relied upon be able to detect every class of drug? New procedures dictating drug testing, no doubt similar to existing drink drive procedures, will need to be adopted. This will invariably lead to procedural challenges. The reliability of drug testing equipment will be called into question as will analytical methods, should the results of a blood or urine procedure be relied upon.
I sense that the Government may be about to create a tidal wave of opportunities to motoring lawyers like myself with regards to technical legal and scientific challenges in drug driving cases.
Charon QC 