Drug Driving Law: Catching the Right Targets?

With the first arrests under the new law having already been made, the Road Law Barristers team considers the effects of the new law on “drug driving” and whether drivers using legitimate prescription drugs might be vulnerable to the same criminal convictions as those taking illicit drugs such a heroin.

It has been illegal for some time to drive whilst unfit to do so due to the ingestion of drugs.  The impact of the new law, however, is to empower the police to arrest and charge a driver who has present in his system an amount of drugs over the legally prescribed limit, even if his or her driving is unaffected.

The real difference is that in addition to a field impairment test, which was very rarely deployed by police in practice, an officer can now screen for the presence of drugs through the use of a roadside drug kit.  A conviction for drug driving would lead to a minimum one-year driving ban, a fine of up to £5,000 and, potentially, a prison sentence.  There will be no legal distinction between a driver convicted having used prescription or illegal drugs.

In addition to a number of illegal drugs, police now have the capacity to check for the presence of the following prescription drugs:

  • Clonazepam – prescribed to treat seizures or panic disorders
  • Diazepam – used for anxiety disorders, alcohol withdrawal symptoms or muscle spasms
  • Flunitrazepam (also known as Rohypnol) – a sedative used for deep sedation
  • Lorazepam – used to treat convulsions or seizures caused by epilepsy
  • Oxazepam – used to relieve anxiety, including that caused by alcohol withdrawal
  • Temazepam – affects chemicals in the brain that may become unbalanced and cause insomnia problems
  • Methadone – used in the treatment of heroin addiction and for pain relief
  • Morphine or opiates – treat moderate to severe pain

The prescribed levels permitted for each drug came into force on 2nd March 2015 and range from 500 grams of methadone in 1 litre of blood to 1 gram of Lysergic Acid Diethylamide in 1 litre of blood.[1]  The theory is that the levels mirror that normally prescribed legitimately – but can this truly factor in the wide spectrum of variables, e.g. human size, pain management levels and effectiveness of drug digestion?

Simply proving that you have taken the drugs pursuant to a prescription is not enough.  Once the police have proven you have exceeded the limits, the law places a burden on you to provide evidence to show that the drug had been prescribed to you, had been used in accordance with both the prescription and the manufacturer’s instructions and that your drug use was not unlawful in another way.[2]

What about the man (Mr. A) prescribed opiate pain management medication for a severe and chronic back condition?  Mr A is stopped by police and found to have a level in his system which exceeds the prescribed level of his particular prescription drug.  Whether or not his ability to drive was, in fact, impaired is irrelevant.  It will be for Mr A to provide evidence that his drugs were prescribed and, crucially, that he was taking them in accordance with medical and manufacturer instructions.  This may require expert evidence.

The salvation for Mr A might be found in another sub-section of the revised law.  Once he has provided enough evidence to “raise an issue with respect to the defence,” it is for the prosecution to prove beyond reasonable doubt that Mr A does not have the defence available to him.[3]

Cases on this topic will be hard fought.  If you find yourself accused of the newly-defined crime of drug driving, seek expert help from a Road Law Barrister from an early stage.  As a starting point for drivers made vulnerable by the new law, we advise you do the following:

i.            Keep a copy of your prescription with you in the car whilst driving;

ii.            Ensure your medical practitioner has been clear with you about the dosage of drugs you are being advised to take.  If the oral advice contradicts the wording of the written prescription, ask for the prescription to be amended;

iii.            Be familiar with manufacturer’s instructions; ignorance of their contents will not provide a defence;

iv.            Call us for advice at the earliest opportunity.  Whilst a road law expert can help you at any stage of proceedings, the earlier they are involved the better the chance of obtaining important evidence from the police.


[1] Section 2 of the Drug Driving (Specified Limits) (England and Wales) Regulations 2014

[2] Section 5A(3) of the Road Traffic Act 1988.

[3] Section 5A (5) of the Road Traffic Act 1988.

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