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A Drug Driver's Tour of the UK and Ireland

A Drug Driver's Tour of the UK and Ireland

Forensic toxicology expertise in drug driving cases - Richard Brown, Keith Borer Consultants

Drugs and Toxicology expert, Richard Brown, has put together a useful review of current legislation and issues surrounding Drug Drive cases throughout the UK and Ireland.  Scroll down to your relevant jurisdiction.

England and Wales:  From to Gwent to Kent

The legal limits for 17 drugs and medications were introduced in 2015 under Section 5A of the Road Traffic Act 1988 (S5A) with levels for illicit drugs being set with a zero-tolerance approach and levels of medications being set with reference to therapeutic levels and likely impairment.

What KBC can do for you:

If your client has been charged under Section 5A RTA and disputes the charge, here’s what we can do:

Re-analysis

Facilitate the analysis of your client’s ‘B’ sample.  Samples may be at least 1-2 months old at the time of independent analysis but this does not detract from the usefulness of such analysis.

In the absence of the suspect’s own sample, we can provide independent analysis of what remains of the Prosecution’s ‘A’ sample which can be made available for the Defence if requested.

Analysis can be useful if a defendant does not accept the result or if they claim no, low or historical use of a drug which seems contrary to the Prosecution’s results.

The analyses are carried out by a laboratory accredited against the ISO:17025 international standard for S5A analysis.

Review of Prosecution Laboratory Data

All blood samples should have intact chain of custody and continuity records from the moment they are taken to the moment of analysis.  This and the accuracy of the Prosecution’s reported results can be checked by reviewing the Analytical Data Pack.

Post-driving Consumption

There is a recognised defence to driving over the prescribed limit for drugs if it is accepted that post-driving consumption occurred and caused the reading.  There is a reverse burden of proof on the Defendant to demonstrate (on the balance of probabilities) that, were it not for post-driving consumption, they would have been below the legal limit for that drug.  In these cases, the credibility of the Defendant is often key and, to assist, we can provide an expert’s opinion on the reported toxicology findings in light of the Defendant’s instructions.

In-Charge

A recognised defence to being in charge of a motor vehicle whilst over the prescribed limit exists whereby the suspect must show that there was no likely prospect of them driving whilst over the limit.  This is relatively straightforward in the case of alcohol, as calculations can be conducted using recognised elimination rates, but not so with drugs as elimination of drugs is highly variable and unpredictable.  However, certain comments can be made based on the circumstances of the case and the Defendant’s account.

Laced drinks or unwitting exposure/use

‘Special reasons’ may be advanced to prevent a convicted driver from losing their licence.  If the Court is satisfied that the driver unwittingly consumed a drug causing them to be over the limit, the driver may be permitted to keep their licence.

With alcohol, calculations can be conducted to estimate the likely alcohol level without the ‘laced drink’ element.  Such calculations cannot be conducted for drugs as there are too many variables and unknown factors to consider for reliable results to be provided.  However, some factors can be considered to give the Court an indication as to whether or not a person would be over or below the legal limit based on their known consumption of a drug.

Sentencing

Draft sentencing guidelines were published in December 2016.  Prior to this, Magistrates’ Courts had been left solely with guidelines for S5A alcohol cases, the use of which is inappropriate for drugs cases in many respects.  To date, these guidelines remain in draft form only.

The guidelines suggest the presence of two or more different drugs (including alcohol) and evidence of poor driving may aggravate, whereas features such as the maturity of the driver, distance driven, requirement for driving to care for someone etc. may mitigate.  They suggest treating drugs and their specific metabolites as one (e.g. cocaine and its metabolite, benzoylecgonine or BZE) for these purposes.

Importantly, the level of a given drug in the blood does not aggravate matters in the same way that alcohol can.  We are aware that, in the past, some Magistrates Courts have misunderstood and incorrectly implemented these guidelines, even imposing custodial sentences for drivers with what they consider to be a ‘high benzoylecgonine level’ despite this chemical having no effect on driving ability.

The presence of drugs in the blood can aggravate sentencing for other driving-related offences (causing death by careless driving etc) but this evidence should be assessed in the context of the case with evidence of driving ability and impairment being important factors which we can assess from the evidence served.

The cannabis paradox – The week after the night before?

Comparing alcohol and cannabis in driving cases is unhelpful and may be misleading.  Here’s why:

The main active ingredient in cannabis, tetrahydrocannabinol (THC) and its metabolite carboxy-THC can accumulate in the body fat so carboxy-THC can be detectable for days or weeks following heavy use.  Conversely, alcohol is not stored but is cleared quickly from the body.

Whilst low doses of both alcohol and THC can impair driving ability, with low-level cannabis use, THC will become undetectable in the blood more quickly than in heavy smokers.  The opposite is true of alcohol, as heavy drinkers tend to clear alcohol more quickly from their blood than occasional or light drinkers.

This mechanism of storage means that regular cannabis users may find have blood THC levels above the England & Wales legal limit much of the time.  The ‘morning after the night before’ alcohol level for drinkers could potentially turn into the ‘week after the night before’ for heavy cannabis users.

Important Drug Drive Considerations:

  • The legal limits for illicit drugs are not impairment related
  • A blood drug level cannot safely be compared with a blood alcohol level for sentencing or any other purpose
  • This has implications in other driving cases such as dangerous driving, causing serious injury or death, and in sentencing for all driving cases where drugs are present
  • There are no limits for drugs in urine – these cases will continue to be prosecuted under S4(1) RTA with the need for the prosecution to demonstrate impairment in addition to toxicology results

Summary of KBC services:

  • Independent analysis of blood/urine samples for drugs and alcohol
  • Review of analytical data packs supporting the Prosecution’s results
  • Review of procedure of blood/urine sample collection
  • Defence reports considering post-driving consumption, unwitting consumption of drugs, effects of medications, and other medical defences
  • Commentary on likely level of impairment from stated drug use and witness statements

Scotland:  From Berwick to Lerwick

On 21st October 2019 legislation was introduced in Scotland similar to the established legislation in England & Wales that sets legal limits for 17 drugs and medications.  8 illicit drugs have limits set with a zero-tolerance, and 8 prescribed medications and amphetamine have limits linked to impairment.

What KBC can do for you:

Under the existing, impairment legislation we can:

  • Provide independent analysis of blood/urine samples for alcohol, drugs and medications
  • Consider the potential effects of alcohol/drugs on driving ability
  • Commentary on likely level of impairment from drug use and witness statements

In addition, under the new Section 5A legislation we can:

  • Provide independent analysis of blood/urine samples for drugs and alcohol
  • Review analytical data supporting the Prosecution’s results
  • Review procedures of blood/urine sample collection
  • Defence reports considering post-driving consumption and unwitting consumption of drugs, and medical defence
  • Commentary on likely level of impairment from drug use and witness statements
  • Discuss implications of toxicology evidence for sentencing

Important Drug Drive Considerations:

  • The legal limits for illicit drugs have nothing to do with impairment of driving ability
  • A blood drug level cannot safely be compared with a blood alcohol level
  • This has implications in other driving cases such as dangerous driving, causing serious injury or death, and in sentencing for all driving cases where drugs are present
  • There are no limits for drugs in urine – these cases will continue to be prosecuted under the existing impairment legislation so the Prosecution will need to demonstrate impairment in addition to the toxicology results

Focus on Cannabis – the week after the night before?

Comparing alcohol and cannabis in driving cases is unhelpful and may be misleading.  Here’s why:

The main active ingredient in cannabis, tetrahydrocannabinol (THC) and its metabolite carboxy-THC can accumulate in the body fat so carboxy-THC can be detectable for days or weeks following heavy use.  Conversely, alcohol is not stored but is cleared quickly from the body.

Whilst low doses of both alcohol and THC can impair driving ability, with low-level cannabis use, THC will become undetectable in the blood more quickly than in heavy smokers.  The opposite is true of alcohol as heavy drinkers tend to clear alcohol more quickly from their blood than occasional or light drinkers.

This mechanism of storage means that regular cannabis users may find have blood THC levels above the legal limit much of the time.  The ‘morning after the night before’ alcohol level for drinkers could potentially turn into the ‘week after the night before’ for heavy cannabis users.

Northern Ireland:  From Newry to Derry

Drug driving is prosecuted under Section 4(1) of RTA 1988 in Northern Ireland where fitness to drive must be assessed and impairment of driving ability must be proved by the Prosecution in addition to toxicology evidence of a drug(s) in the body.

Impairment should be assessed by a trained officer or a medical professional and evidence of the nature of the impairment through witness statements and Preliminary Impairment Tests (PITs) should be documented.  In Northern Ireland PITs are rarely conducted leading to a significantly weaker case for the Prosecution.

Currently, there are no legal limits for drugs in the blood in NI and no plans to introduce them any time soon.

What KBC can do for you…

  • Assess the reported toxicology findings
  • Consider specific lines of defence such as post-driving use or unwitting drug consumption
  • Discuss the potential effects of drugs on driving ability
  • Provide re-analysis of the blood/urine for alcohol/drugs
  • Discuss the effects of legitimate medications on the results
  • Consider and challenge any evidence of impairment
  • Discuss implications of toxicology evidence for sentencing

Ireland:  From Cork to Dundalk

In 2016, new legislation in Ireland saw the introduction of legal driving limits for 5 drugs/metabolites in the blood.  This is not a new concept; legal limits for drugs were first introduced in Norway in 2012 (for 20 drugs/metabolites), in England & Wales in 2015 for 17 drugs/metabolites and in October 2019 in Scotland (as for England & Wales).

Cannabis in the legislation:

  • Limit for tetrahydrocannabinol, the main active ingredient in cannabis (THC) is 1.0µg/L* – lower than both Norway (1.3µg/L) and England, Wales & Scotland (2µg/L)
  • Limit for the inactive metabolite of THC (carboxy-THC) is very low at just 5µg/L – no such limits exist in Norway, England, Wales or Scotland.

*micrograms per litre

The Cannabis Paradox – The fortnight after the night before?

Comparing alcohol and cannabis in driving cases is unhelpful and may be misleading.  Here’s why:

The main active ingredient in cannabis, tetrahydrocannabinol (THC) and its metabolite carboxy-THC can accumulate in the body fat so carboxy-THC can be detectable for days or weeks following heavy use.  Conversely, alcohol is not stored but is cleared quickly from the body.

Whilst low doses of both alcohol and THC can impair driving ability, with low-level cannabis use, THC will become undetectable in the blood more quickly than in heavy smokers.  The opposite is true of alcohol as heavy drinkers tend to clear alcohol more quickly from their blood than occasional or light drinkers.

This mechanism of storage means that regular cannabis users may find have blood THC and carboxy-THC levels above the legal limit much of the time.  The ‘morning after the night before’ alcohol level for drinkers could potentially turn into the ‘week after the night before’ for heavy cannabis users and they can be in breach of legislation days after any cannabis use.

Important Drug Drive Considerations:

  • The legal limits for illicit drugs have nothing to do with impairment of driving ability
  • A blood drug level cannot safely be compared with a blood alcohol level
  • This has implications in other driving cases such as dangerous driving, causing serious injury or death, and in sentencing for all driving cases where drugs are present
  • There are no limits for drugs in urine – these cases will continue to be prosecuted with the need to demonstrate impairment in combination with toxicology results

What KBC can do for you…

  • Independent analysis of blood/urine samples for drugs and alcohol
  • Review of analytical data supporting the Medical Bureau’s results
  • Review of procedure of blood/urine sample collection
  • Defence reports considering post-driving consumption and unwitting consumption of drugs, and medical defence
  • Discuss the effects of prescribed and non-prescribed medications on the results
  • Commentary on likely level of impairment from drug use and witness statements
  • Discuss implications of toxicology evidence for sentencing

If you have a case involving drugs, medicines or alcohol, please contact the team on 0191 332 4999 or email kbc@keithborer.co.uk

 

 

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