Expert opinion by Head of Motoring Law, Alison Ashworth
Less than two weeks before the implementation of the new drug driving law, I was contacted by a Police Sergeant who wanted to know more about the offence. Quite understandably as a defence lawyer this caused me concern about the general level of awareness and police readiness for the new law. Whilst this Sergeant clearly had an interest in the new law, other forces have not been so keen. Some, even displaying a blatant disregard for it:
Greater Manchester Police have stated that they will NOT be enforcing the new law on its commencement due to concerns over the ability of the legislation to stand up in Court.
As a specialist Motoring Lawyer who deals predominantly in defending flawed motoring prosecutions I must say that I share their concerns. It appears that all sectors of the justice system are wholly unprepared for the commencement of this new law:
The drugalizer lottery
Whilst a roadside drugalizer device has been ‘type approved’ for roll out to police forces across England and Wales, the reality is that the device will NOT be available to all areas in advance of the new law being activated. The expense of the device along with the level of training required to operate it appear not to have been considered in time for the launch of the new drug driving law. Whilst the roadside device is intended to eventually streamline the drug identification procedure, it appears that we are a significant distance away from a time when testing for the drugs covered by the new law become routine at the roadside.
Furthermore, although 16 drugs are covered under the new law, only 2 are capable of detection at the roadside. This means that the majority of substances which the new law is designed to tackle will still require detection via the time consuming and apparently subjective method of field impairment tests which were previously in place.
As a specialist Motoring Lawyer, I have successfully defended a huge number of cases on the basis that the procedure was not followed correctly. This is even the case in established areas of law such as drink driving where uniform procedures have been in place for years. It appears that procedure for the new offence is distinctly lacking, leaving the likelihood for unfairness to motorists along with the consequential legal challenges to procedure rife.
What the new limits actually mean
Firstly, there is a significant lack of guidance about the drug driving limits themselves. Whilst lots has been done to raise awareness of this huge ‘shake up of the drug driving law’ surprisingly little information has been provided by the government to advise the general public about the practical implications of taking drugs on a persons liability under the new offence.
Limits have been provided, but in a similar manner to drink driving, motorists have been left bewildered as to what amount of drugs would constitute exceeding the limit. Particular concern is raised over ‘the morning after’ or sometimes days or even months after in certain cases where drugs are concerned. Drugs remain in a person’s system for much longer than alcohol, often long after the effects have worn off, yet the minimum sentence for drink driving and having drugs in a person’s system above the limit will be the same. Is it really fair to punish a person who smoked cannabis in the privacy of their own home two days ago in the same manner as someone who drank alcohol and drove within the same night?
The medical defence
Under the new law, there is a medical defence which can be raised if:
- The drug had been prescribed or supplied to the person for medical or dental purposes; and
- The person took the drug in accordance with the instructions given by the person who prescribed or supplied it, and in accordance with any directions in the accompanying leaflet from the drugs manufacturer or distributor;
… and provided they have adhered to restrictions for example on the amount of time which they must wait before driving after taking the medication.
However: What if a person had been taking a high dose of opiate based morphine (and does so in accordance with the instructions of their GP), and then obtains opiate based codeine (and consumes it in accordance with the instructions from their pharmacist or instructions given in the information leaflet from an over-the-counter pain relief medication)? Would the medical defence be available to them?
Also, given the well known differences in metabolic rate and individual characteristics on the body’s ability to break down substances, how will the Prosecution be able to disprove whether a drug was taken in accordance with prescribing instructions?
The sentencing of offenders
The new law will be implemented on 2nd March 2015 without official sentencing guidelines being in place to provide a uniform approach to the punishment of offenders.
What is known is that a person who is found guilty of the offence would face a 12 month disqualification from driving, a fine of up to £5000, and a prison sentence of up to 6 months.
As a motoring lawyer, who is obliged to inform my clients about the likely sentence relating to their offence, I was curious to know whether the new law would mirror existing provisions within similar offences such as drink driving. For offences such as drink driving, the Magistrates are guided to impose a minimum 3 year disqualification for repeat offenders within a ten year period, and are guided to increase the length of a person’s disqualifications in line with the amount of alcohol in their system.
However, after contacting the sentencing council and department for transport I have established that Magistrates’ sentencing guidelines have not yet been prepared in relation to the new drug driving offence; in fact they are not likely to be prepared until 2016. There are no specific provisions in place to sentence repeat offenders more harshly than first time offenders, nor is there guidance in place to impose more severe penalties for those who are found significantly over the limit than those found to be just over.
Surely it would be unfair to sentence a person who is one unit over the limit for driving over the prescribed limit for taking a therapeutic medication such as temazapam in the same manner as a repeat offender who is twice the limit for taking an illegal substance such as LSD or heroin?
Are we ready?
I have received a number of calls from members of the public who are in some cases, quite rightly concerned over the fairness of the new law. I agree, there appears to be huge disparities ingrained within the entire legal process concerning this new law. From the lottery of police forces who administer it (or otherwise), the Prosecution, who will no doubt find difficulty in navigating their way around the ambiguous medical defence, to the potentially contrasting approaches of Courts who may find difficulty in determining a uniform approach over the sentencing of this new category of offenders.
At a time when the government is hell bent on scraping savings from the justice system; when the legal aid budget has been cut for key areas such as family law and criminal law, and in a world where in reality, the vast majority of motorists will have to either pay privately to defend their motoring prosecution or face the wholly unjust alternative of having to represent themselves, does it really make sense to waste public funds on brining flawed cases to Court under this new law before the legal issues concerning it have been fully ironed out?
Do we need a new drug driving law? Yes. Is the legal system ready for the impending new law? Absolutely not.
Written by Head of Motoring Law at Forster Dean Solicitors, Alison Ashworth
If you like many are concerned about the new drug driving law, or would like expert advice regarding any motoring offence such as drink driving, drug driving, failure to provide a specimen or totting up then call our free advice line on 0333 323 1830.drug driving, drug driving law, medical defence, prescription medication