Motor Law Section - Drug Driving
Section 56 of the Crime and Courts Act 2013 inserted the new section 5A in the Road Traffic Act.
This created a new offence of driving, attempting to drive or being in charge of a motor vehicle on a public road if the concentration of a specified drug in the blood is above the limit prescribed for that drug. Of course, the Prosecution had long been able to charge 'Driving Whilst Unfit,' through drink or drugs contrary to Section 4(1) of the Road Traffic Act 1988. However, that offence requires evidence of being 'unfit,' which the Prosecution were not always able to establish. The newer offence does not require such evidence. In the same way as driving with excess alcohol, the offence requires only that the level of a particular drug in the driver's system exceeds the prescribed limit. If it does - the Prosecution have a prima facie case.
Again (as with Drink Driving), there is a difference between driving or attempting to drive and being 'in charge,' of a motor vehicle. Whether you are 'in charge,' of a motor vehicle is a matter of fact and degree and the particular circumstances of your case. It might be that you can challege the charge on the basis that you were not 'in charge,' of the motor vehicle. Perhaps you consumed drugs post driving - or you do not agree that you consumed drugs as alleged. Whatever the situation, speak to Coral Fitzgerald for more information.
section 5A of the Road Traffic Act 1988 is designed to mirror the provisions for alcohol which already exist in s5 of the RTA.
The drugs covered by the new offence, and the limits for each, were established by The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 [Statutory Instrument 2868 of 2014], which is noted below. Amphetamine was added later (dealt with below).
Specified controlled drugs and specified limits for the purposes of section 5A of the Road Traffic Act 1988
2. The table below specifies the controlled drugs(1) and, in each case, the limit in blood for the purposes of the offence in section 5A of the Road Traffic Act 1988.
Table
| Controlled drug | Limit (microgrammes per litre of blood) |
|---|---|
| Benzoylecgonine | 50 |
| Clonazepam | 50 |
| Cocaine | 10 |
| Delta-9-Tetrahydrocannabinol | 2 |
| Diazepam | 550 |
| Flunitrazepam | 300 |
| Ketamine | 20 |
| Lorazepam | 100 |
| Lysergic Acid Diethylamide | 1 |
| Methadone | 500 |
| Methylamphetamine | 10 |
| Methylenedioxymethamphetamine | 10 |
| 6-Monoacetylmorphine | 5 |
| Morphine | 80 |
| Oxazepam | 300 |
| Temazepam | 1000 |
The Regulations were amended by The Drug Driving (Specified Limits) (England and Wales) (Amendment) Regulations 2015 [Statutory Instrument 911 of 2015],
which adds Amphetemine and a limit of 250.
The List includes drugs which are available on prescription, as well as illegal drugs.
If you are charged with driving whilst unfit through drink or drugs - the Prosecution will still need to prove that you were unfit to drive.
If you are charged with 'drug driving,' the Prosecution will need to prove that your 'sample,' was properly tested and that the concentration of any of the
drugs noted above was above the limits stated.
Cases of 'drug driving,' can, of course be challenged. Speak to Coral Fitzgerald if you want to discuss this further on 07790 356069.
Coral can also represent you if you want to accept guilt in relation to this charge. Sadly, there are no specific sentencing guidelines that relate to
it. Rather, there is simply 'guidance.' You will find this noted in full below. The guidance covers offences of Drug Driving (Driving) and Drug Driving (In Charge).
DRUG DRIVING - SENTENCING GUIDELINES COUNCIL GUIDANCE DOCUMENT
Drug Driving Guidance Introduction
Since the new offence came into force in March 2015 the Sentencing Council has received a large number of requests for a sentencing guideline. It has been
brought to our attention that there are concerns with sentencing in this area and a risk of inconsistent practices developing. The new offence is a strict liability offence, which is committed once
the specified limit for any of 17 specified controlled drugs is exceeded. The 17 drugs include both illegal drugs and drugs that may be medically prescribed. The limits for illegal drugs are set in
line with a zero-tolerance approach but ruling out accidental exposure. The limits for drugs that may be medically prescribed are set in line with a road safety risk-based approach, at levels above
the normal concentrations found with therapeutic use. This is different from the approach taken when setting the limit for alcohol, where the limit was set at a level where the effect of the alcohol
would be expected to have impaired a person’s driving ability. For these reasons it would be wrong to rely on the Driving with Excess Alcohol guideline when sentencing an offence under this
legislation. Guidance Only At present there is insufficient reliable data available from the Department for Transport upon which the Sentencing Council can devise a full guideline.
For that reason, and given the number of requests for guidance that have been received, the Sentencing Council has devised the attached guidance to assist
sentencers.
It is important to note that this guidance does not carry the same authority as a sentencing guideline, and sentencers are not obliged to follow it.
However, it is hoped that the majority of sentencers will find it useful in assisting them to deal with these cases.
The Sentencing Council will, in due course produce a guideline with the assistance of evidence and data gathered by the Department for Transport. Any new
guideline will be made subject to public consultation before it is finalised.
2 Drug Driving, Guidance Drug Driving Guidance Background
The Crime and Courts Act 2013 inserted a new section 5A into the Road Traffic Act 1988 (RTA), which makes it an offence to drive, attempt to drive, or be in
charge of a motor vehicle with a concentration of a specified controlled drug in the body above the specified limit. The offence came into force on 2 March 2015.
Driving or Attempting to Drive Triable only summarily: Maximum: Unlimited fine and/or 6 months
Must endorse and disqualify for at least 12 months
Must disqualify for at least 2 years if offender has had two or more disqualifications for periods of 56 days or more in preceding 3 years – refer to
disqualification guidance and consult your legal adviser for further guidance
Must disqualify for at least 3 years if offender has been convicted of a relevant offence in preceding 10 years – consult your legal adviser for further
guidance If there is a delay in sentencing after conviction, consider interim disqualification.
As a guide, where an offence of driving or attempting to drive has been committed and there are no factors that increase seriousness the Court should
consider a starting point of a Band C fine, and a disqualification in the region of 12–22 months. The list of factors that increase seriousness appears at page 3. Please note this is an exhaustive
list and only factors that appear in the list should be considered. Where there are factors that increase seriousness, the Court should consider increasing the sentence on the basis of the level of
seriousness.
The community order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness. The Court should also
consider imposing a disqualification in the region of 23–28 months.
The custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one or more aggravating factors
(see below). The Court should also consider imposing a disqualification in the region of 29–36 months.
Having determined a starting point, the Court should consider additional factors that may make the offence more or less serious.
A non-exhaustive list of aggravating and mitigating factors is set out below.
Drug Driving, Guidance 3 Factors that increase seriousness (this is an exhaustive list)
Evidence of another specified drug1 or of alcohol in the body
Evidence of an unacceptable standard of driving
Driving (or in charge of) an LGV, HGV or PSV
Driving (or in charge of) a vehicle driven for hire or reward Aggravating and mitigating factors (these are non-exhaustive lists)
Aggravating Factors
Previous convictions having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the
time that has elapsed since the conviction
Location e.g. near school
Carrying passengers
High level of traffic or pedestrians in the vicinity
Poor road or weather conditions
Mitigating Factors
No previous convictions or no relevant/recent convictions
Remorse
Good character and/or exemplary conduct
Age and/or lack of maturity where it affects the responsibility of the offender
Mental disorder or learning disability
Sole or primary carer for dependent relatives
Very short distance driven
Genuine emergency established 1
For these purposes, cocaine and benzoylecgonine (BZE) shall be treated as one drug as they both occur in the body as a result of cocaine use rather than
poly-drug use. Similarly, 6-Monoacteylmorphine and Morphine shall be treated as one drug as they both occur in the body as a result of heroin use. Finally, Diazepam and Temazepam shall be treated as
one drug as they also both occur in the body as a result of Temazepam use.
4 Drug Driving,
Guidance In Charge Triable only summarily: Maximum: Level 4 fine and/or 3 months Must endorse and may disqualify. If no disqualification, impose 10
points
As a guide, where an offence of being in charge has been committed but there are no factors that increase seriousness the Court should consider a starting
point of a Band B fine, and endorsing the licence with 10 penalty points.
The list of factors that increase seriousness appears below. Please note this is an exhaustive list and only factors that appear in the list should be
considered.
Where there are factors that increase seriousness, the Court should consider increasing the sentence on the basis of the level of seriousness.
The community order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one or more aggravating
factors (see below).
The Court should also consider imposing a disqualification.
Where there is evidence of one or more factors that increase seriousness and a greater number of aggravating factors (see below) the Court may consider it
appropriate to impose a short custodial sentence of up to 12 weeks. The Court should also consider imposing a disqualification.
Having determined a starting point, the Court should consider additional factors that may make the offence more or less serious. A non-exhaustive list of
aggravating and mitigating factors is set out below.
Factors that increase seriousness – (this is an exhaustive list)
Evidence of another specified drug or of alcohol in the body
Evidence of an unacceptable standard of driving
Driving (or in charge of) an LGV, HGV or PSV
Driving (or in charge of) a vehicle driven for hire or reward
2 For these purposes, cocaine and benzoylecgonine (BZE) shall be treated as one drug as they both occur in the body as a result of cocaine use rather than
poly-drug use.
Similarly, 6-Monoacteylmorphine and Morphine shall be treated as one drug as they both occur in the body as a result of heroin use. Finally, Diazepam and
Temazepam shall be treated as one drug as they also both occur in the body as a result of Temazepam use.
Drug Driving, Guidance 5
Aggravating and mitigating factors (these are non-exhaustive lists)
Aggravating Factors
Previous convictions having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the
time that has elapsed since the conviction
Location e.g. near school
Carrying passengers
High level of traffic or pedestrians in the vicinity
Poor road or weather conditions
Mitigating Factors
No previous convictions or no relevant/recent convictions
Remorse
Good character and/or exemplary conduct
Age and/or lack of maturity where it affects the responsibility of the offender
Mental disorder or learning disability
Sole or primary carer for dependent relatives
Very short distance driven
Genuine emergency established
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