Drug Driving Ban / Offences
What are the drug driving offences?
There are four offences that can be committed by an individual under the influence of drugs:
Driving or attempting to drive a mechanically propelled vehicle whilst unfit through drugsSection 4(1) 1988 Road Traffic Act
In charge of a mechanically propelled vehicle whilst unfit through drugsSection 4(2) 1988 Road Traffic Act
Driving a motor vehicle with concentration of a specified controlled drug above the specified limitSection 5A(1)(a) 1988 Road Traffic Act
In charge of a motor vehicle with concentration of a specified controlled drug above the specified limitSection 5A(1)(b) 1988 Road Traffic Act
The law on drug driving offences was amended in April 2015. Previously, there was a requirement to demonstrate that a driver was "unfit" and the obligation upon the Police was to persuade the Court that at the time of the incident, the ability to drive was "impaired" as a result of drug consumption. That would inevitably require some form of "fit" assessment at the roadside. Whilst those offences remain valid, two new offences (driving / in charge with concentration of a specified controlled drug above the specified limit) were introduced that allow conviction if the level of drug recorded exceeds what are extremely low thresholds, regardless of whether the ability to drive is affected in any way. It is therefore far easier for the Police to prosecute using the new offences, but that in turn requires expert evidence which must comply with fairly strict guidelines. In addition, the new rules introduced a list of controlled drugs.
What is the penalty for drug driving?
For any offence where you are convicted of driving, a minimum 12 month disqualification will be imposed. For an offence "in charge", but where there is no evidence of driving, the minimum penalty is 10 penalty points.
What are the Court Sentencing Guidelines for drug driving offences?
In addition to a fine, which in certain circumstances can be unlimited, but would normally be based on your weekly income and mitigation, the Court will impose a penalty as detailed below:
|Drug driving / atttempting to drive whilst unfit through drugs|
|Examples||Driving Ban (Months)||Additional Penalties|
|First Offence||Second Offence*|
|Evidence of moderate level of impairment and no aggravating factors||12–16||36–40|
|Evidence of moderate level of impairment and presence of one or more aggravating factors||17–22||36–46|
|Evidence of high level of impairment and no aggravating factors||23–28||36–52||Community / Curfew Order|
|Evidence of high level of impairment and one or more aggravating factors||29–36||36–60||12-26 weeks custody or High Level Community / Curfew Order|
|In charge of a vehicle whilst unfit through drugs|
|Examples||Points / Ban (Months)†||Additional Penalties|
|Evidence of moderate level of impairment and no aggravating factors||10|
|Evidence of moderate level of impairment and presence of one or more aggravating factors||10||Up to 6 months|
|Evidence of high level of impairment and no aggravating factors||10||Up to 6 months||Community / Curfew Order|
|Evidence of high level of impairment and one or more aggravating factors||10||6–12||12-26 weeks custody or High Level Community / Curfew Order|
|*||Second offence in 10 years.|
|†||The Court has the option to impose penalty points OR a driving ban.|
Are all drugs illegal?
No. There is a specified list of controlled drugs which are illegal and if a sufficient trace of any those drugs is established, then the offence is likely to be proved. For drugs that are not illegal, the Police can still raise an allegation of being "unfit", but would have to establish that your ability to drive was impaired.
Do the Police have to show that the drugs affected my ability to drive?
The rules have changed. When the two new offences (driving / in charge of a motor vehicle with concentration of a specified control drug above the specified limit) were introduced, it meant that there was no longer any requirement for the Police to prove that you were impaired or your driving or had been in any way affected by the drugs established. The offence is proved if the Police can show that the levels of drug recorded exceeded what are effectively artificially low limits.
There would be an obligation to prove impairment if the drug consumed was not on the controlled list.
What drugs are on the controlled list?
|Controlled Drug||Limit (micrograms per litre of blood)|
|Delta 9 – Tetrahydrocannabinol||2 (the primary ingredient of marijuana)|
|Lysergic Acid Diethylamide||1 (LSD/Acid)|
|6–Monoacetyl Morphine||5 (constitute of heroin)|
What if I was prescribed the drugs?
Even if the drug was prescribed and is not on the controlled list, an offence can still be committed if the Police can show that your driving was impaired. For example, if you have consumed various sleeping tablets and that affects your driving, an offence is committed, even though the tablets themselves contain no illegal drugs. In these cases, most of the drugs prescribed would come with a warning not to drive etc., and even if you have been given no guidance whatsoever by any medically qualified party, you could still be convicted if it should have been apparent to you that they would affect your ability to drive.
Are there defences available?
Yes. If you can establish that you were below the limit on a controlled drug, there would be a defence. However, this will require expert evidence. There may be potential defences if you can establish that you had not knowingly consumed the drug i.e. your drink had been spiked etc. If you believe you have a potential defence, you should seek expert legal advice. Bear in mind that if you challenge the allegation and lose, you could receive a more severe penalty.Legal Advice
What if I wasn't impaired?
For allegations for a controlled drug, there is no need to establish impairment. The offence is proved on the basis of the calculation alone.
What if I didn't realise I would still be affected?
If you have consumed drugs some days before the offence, and therefore your driving was not affected in any way, you will still be convicted if the reading is above the limit. May people fail to appreciate that there will be a sufficient trace of some controlled drugs 3–4 days after consumption. The levels imposed are extremely low and so even the most minute residual trace will still result in conviction.
If I face a ban, is there any point instructing a lawyer?
Yes. Whilst it may be that a ban is inevitable, the length of the ban can vary significantly based on the circumstances / mitigation etc. It makes sense to obtain guidance so that you can minimise the penalty to include the fine imposed.Legal Advice