At James Murray Solicitor we are asked daily to represent clients accused of drug driving. It is an offence that more and more people are falling foul of; here are some of the issues that we must address.
The offence of driving or attempting to drive a motor vehicle, with a specific drug above the specified limit, is found in section 5(a) of the Road Traffic Act 1988. This is a relatively new legislation, coming into force in England and Wales from 2015. Previously defendants were prosecuted under Section 4(1) of the Road Traffic Act and the Prosecution then had to prove not only that a certain drug was in the defendant’s system, but that the driving was also impaired.
That all changed when the new legislation arrived in 2015 and now the Crown simply must prove beyond reasonable doubt that the defendant drove a motor vehicle on a road or public place and that the amount of drugs in their system is over the drug drive limit. In this way, the legislation is now just like drink driving; the prosecution does not have to prove that the defendant’s driving was impaired.
The first question that we are often asked is: what are the drug drive limits? Here is a sample of some of the most regular ones:
Threshold limit in micrograms
Illegal drug Per litre of blood ( ug/L)
- Benzoylecgonine 50 ug/l
- Cocaine 10 ug/l
- Cannabis 2 ug/l
- Ketamine 20 ug/l
- MDMA 10 ug/l
- Heroin 5 ug/l
The legislation adopts a zero-tolerance approach, in that unlike drink driving, where there is an element of tolerance with the limits, you can have alcohol in your system, and provided you are not over the limit, then you won’t fall foul of the drink driving legislation.
However, with drug driving, if there is any type of drug in your system, then the chances are the suspect will be over the drug drive limit.
We are often asked why someone must be arrested if they have provided a positive drug test at the side of the road. The explanation is quite simple. That test is not evidential, the police could not use that test to prove beyond reasonable doubt that someone was over the drug drive limit, for that they need to take the suspect to the police station to obtain a sample from them.
The fundamental difference in the procedure between drug and drink driving is that for drink driving, the starting point for the Police is to ask for a breath sample. In drug driving, the Police will initially ask for a blood sample. Why? Simply because due to the lack of scientific equipment, presently the Police cannot use breath to detect drugs in the system.
If for whatever reason someone cannot provide blood, then the Police have the option of then asking for a sample of urine for analysis, but here is a point worth noting: its not for the suspect to dictate what type of sample he/she provides, that decision is entirely down to the officer in the case.
If blood has been taken, then the officer has to offer the suspect a sample of blood, if they accept it, they need to be sure to keep it refrigerated, otherwise the sample will be useless. If the spare sample is not offered to a suspect, then that is a defence that can be advanced in court.
Having provided a sample of blood, the Police will then send that sample off to be analysed by a toxicologist, and this could take several months.
We are often asked if the police have any time limits to bring the case against the defendant, and that is a very sensible question. They must issue the proceedings against the defendant within six months of the offence date. If the court proceedings are issued outside of that time limit, then the Prosecution are barred from being able to bring the case against the defendant.
As a firm, we deal regularly with these types of cases and we now have independent toxicologists available to analyse someone’s own sample of blood, often sometimes before the Police can.
As the legislation is relatively new, we notice that sometimes the prosecution can make mistakes, sometimes the police fail to warn a suspect that they could be prosecuted if they failed to provide a sample of blood for analysis. This is called the statutory warning and it has to be given to the suspect during the procedure.
On other occasions, the continuity evidence provided by the Police can be incorrect, and if the Prosecution cannot prove who the sample belongs to, then there is doubt.
If someone is initially charged, the Prosecution will try to rely upon a summary of the toxicologist’s findings in a document called an SFR 1. Technically, this document is not admissible as evidence and if the defendant wishes to contest the charge, it requires the Prosecutor to call the toxicologist to provide further evidence in a second statement, called an SFR 2.
Only recently, we dealt with a case where mistakes had been made in the SFR 2 and the prosecution failed.
Finally, the burning question is: how long do drugs stay in your system for? This really is the million-dollar question.
We are working regularly with toxicologists and I have posed that question to them, their responses will stagger you.
Cannabis will stay in your system for days at a time. One toxicologist recently informed us that if someone smoked cannabis, they should not drive a motor vehicle for between 7 and 9 days.
Cocaine stays in someone’s system for just a couple of hours on average, however, it leaves in its wake benzoylecgonine, which is a metabolite of cocaine. If someone is over the limit for that, then they will be prosecuted. Again, we have been reliably informed that such a drug remains in your system for days at a time.
There are defences to such allegations if you know where to look, but the best course of action is not to take controlled drugs (at all) and certainly not to drive whilst they are in your system. However, if you have been arrested for such an offence, or have been charged by the Police to appear in court, please do not hesitate to contact James Murray Solicitors, 0151 933 3333.