What is drug driving over the legal limit or while unfit?

Convictions for drug driving are on the rise compared to drink driving. A great many drugs can remain in the body far longer than alcohol. People indulge in their recreational drug of choice and mistakenly think they can drive when a few days have passed. However, drug driving does not just apply to illegal drugs. Many motorists, often without realising it, are found to be driving under the influence of quantities of prescription drugs that are deemed unsafe. Drug driving is also known as driving under the influence of drugs.

There are two main offences for drug driving, these being drug driving while over the specified legal limit and, much less commonly, drug driving while unfit. This article will discuss these offences in turn and then discuss some similar features of both.

What is drug driving over the specified limit?

This offence came into force in 2015. The official name for this crime is driving a motor vehicle on a road when the proportion of a controlled drug exceeded the specified limit. It is contrary to section 5A of the Road Traffic Act 1988. It is also known as driving while over the prescribed drug limit and drug driving over the legal limit.

For you to be found guilty of this offence, two elements would have to be proved:-

That you were driving, or attempting to drive, a motor vehicle on a road or other public place.
That the proportion of the drug in your blood was found to be over the specified legal limit.

Do you have to be driving badly to be guilty of drug driving over the legal limit?

No. You will be guilty of this offence, even if the drug has not affected the standard of your driving, provided you are above the specified legal limit.

Why isn’t drug driving while exceeding the prescribed limit a “zero tolerance” offence?

The law doesn't just forbid any trace of drugs in your body but instead allows low specified limits for certain drugs. This tolerance is to allow, in the case of illegal drugs, the possibility of accidental exposure. For example, passive smoking when someone is taking cannabis near you. In the case of legal drugs, there are also specified limits to allow for normal prescription levels.

How long after taking a drug can you still be over the specified limit?

The amount of time that a drug remains in your system varies widely from individual to individual. It depends not only on the quantity consumed but also on how it was taken, the person's height, weight, and metabolic rate. Cannabis (known as Delta-9-tetrahydrocannabinol) can remain in the blood for days, typically for 48 to 72 hours. Cocaine is often still found to be present 12 to 72 hours after it was taken. Ketamine potentially lasts even longer and can be detected in the blood up to 5 days after taking it.

What are the drug legal limits?

There are various limits for different drugs. If you drive whilst the amount of the drug in your blood is over the legal limit for that particular drug, then you are guilty of this offence. The limits are measured in the blood in µg/L, which is micrograms per litre.

The specified limits for prescription drugs are:-

Clonazepam (used for certain panic disorders and seizures) 50 µg/L
Diazepam (used frequently for anxiety disorders) 550 µg/L
Flunitrazepam (this is a sedative) 300 µg/L
Lorazepam (used for epilepsy) 100 µg/L
Methadone (used for heroin addiction) 500 µg/L
Morphine (used for pain relief) 80 µg/L
Oxazepam,(used to treat anxiety) 300 µg/L
Temazepam (used for insomnia) 1000 µg/L

The specified limits for illegal drugs are:-:

Benzoylecgonine (this is a metabolite of cocaine) 50 µg/L
Cocaine 10 µg/L
Delta–9–tetrahydrocannabinol (cannabis) 2 µg/L
Ketamine 20 µg/L
Lysergic acid diethylamide (LSD) 1 µg/L
Methylamphetamine (Crystal Meth) 10 µg/L
Methylenedioxymethamphetamine (MDMA / ecstasy) 10 µg/L
6-monoacetylmorphine (diamorphine and heroin) 5 µg/L

What is the procedure for drug driving over the prescribed limit?

The procedure before court

You may have a preliminary swab test at the roadside for cannabis or cocaine.
If the result of this test is positive, or if you are believed to have other drugs in your system, then you can be arrested and taken to the police station.
At the police station, you will be required to give a specimen of blood to see if you are above the specified limit for a wide variety of drugs.
If you refuse, without a reasonable excuse, to provide this blood test you may be convicted of another offence, refusing to give a specimen.
The police should offer you a sample of your blood after it has been taken for analysis. You should accept this and place it in the fridge at home because this could be useful for a future defence.
The police must follow a strict procedure at the police station, and if they fail to do so, a defence may be available.
You are only likely to be interviewed by the police if there has been a road traffic accident or an unusual complication where the police need to hear your version of events before making a decision.
After your blood has been taken you will generally be police bailed and therefore free to leave the police station whilst your blood is analysed. However, this usually won't be till the drugs in your system have reached a satisfactory level.
The police will send your blood sample to an independent laboratory for analysis. If the result is that you are over the specified limit for a particular drug you will be charged and given a court date.

The procedure at court

Suppose your matter goes to court for drug driving over the legal limit. In that case you will generally appear at a hearing before three magistrates, but you may appear before a single district judge.
You may have a defence to drug driving over the legal limit. Then, you can enter a not-guilty plea and your matter will usually be put over to a trial date.
If you do not have a defence you can enter a guilty plea. If that is the case you will usually be sentenced the same day.
If the offence is deemed very serious, then your matter may be put over for a full Pre Sentence Report to be prepared. This will often be the case if the magistrates consider a prison sentence a possibility.

What are the defences for drug driving over the legal limit?

There are many possible defences. Here are just a few:-

It is a defence to drug driving over the legal limit if you can show that the drug found in your system was prescribed and in taking it you followed the medical advice given.
It is also a defence if you can show that you were driving, or attempting to drive, a vehicle while over the specified limit on private land. Here, you would need to show that the vehicle was in a location which the public do not have access to.
Another possible defence to drug driving over the legal limit is if you only took the drugs after you had stopped driving (you will generally need some evidence to back up this assertion).

What is drug driving while unfit?

This is the other main drug driving offence. It is usually treated as a fallback allegation by the police. The police will typically first see if you can be pursued for drug driving above the specified limit because it is usually much easier to prosecute. Only if you are found to be below the legal limit, and the police believe that a drug impaired your driving, would they turn their attention to the possibility that you were driving whilst unfit through drugs. This is because you don't need to be found to be above any limit to be guilty of this offence. This offence is also known as drug impaired driving.

Drug driving while unfit comes under Section 4 of the Road Traffic Act 1988. This states that it is an offence if you drive (or attempt to drive) on a road or other public place while you are unfit through drugs or drink.

It should be noted that this offence does not just apply to drugs. It also applies to being unfit to drive through drink.

For you to be found guilty of drug driving whilst unfit the prosecution would have to prove three aspects:-

1. That you were unfit to drive

2. That there was a drug, or drugs, in your body when you were driving

3. That your being unfit to drive was caused by that drug or drugs.

The prosecution often has great difficulty proving the last of these three ingredients. If it was found that your unfitness to drive was not caused by drugs but by something else, for instance a medical condition or a learning difficulty, then you would have a defence to drug driving while unfit.

It should be borne in mind that drug driving while unfit applies to both legal and illegal drugs.

What is the procedure for driving while unfit through drugs?

Suppose you were pulled over because a police officer believed that you might be drug driving while unfit, perhaps because of the manner of your driving. In that case, the police may ask you to undergo a Field Impairment Test (FIT test) at the roadside. This test will involve seeing if you can perform specific tasks, such as trying to walk in a straight line and balancing on one leg. If you fail this test, then you will probably be arrested for drug driving while unfit and taken to a police station. Here, the police will ask you to give a blood or urine sample, which can be analysed to see if there are drugs in your system.

What is the punishment for drug driving over the legal limit or while unfit?

The offences of drug driving while above the specified limit and drug driving while unfit through drugs can only be dealt with in the Magistrates' Court.

The sentencing powers are similar for both offences:-

The minimum ban that you can receive is a 12 month disqualification.
Suppose you have a previous conviction for drug driving or drink driving within the last 10 years preceding the date of the current offence. In that case, you will receive a minimum three-year driving disqualification.
There is no maximum length for the period of disqualification you may receive.
There is no upper limit as to how much the magistrates can fine you.
If the offence is very serious you could receive a community order or even a prison sentence of up to 12 months.

Being found guilty of drug driving over the specified limit or drug driving while unfit will mean that you will have a criminal record. A criminal record can make it harder for you to find work and travel to certain countries. Your car insurance premiums will increase, and the offence will remain on your driver's licence for 11 years.

Can you argue special reasons for drug driving over the legal limit or while unfit?

The answer is yes. A special reason can apply to both allegations of drug driving while over the legal limit and drug driving whilst unfit. The magistrates may find a special reason if you are technically guilty of the offence, but they do not find you at fault. If the court finds a special reason, it can give you a reduced driving ban or choose not to disqualify you at all. Remember that if you are trying to rely on a special reason the court will generally expect you to provide evidence to support this.

Two examples of special reasons for drug driving while over the prescribed limit and drug driving whilst unfit are:-

Someone spiked your drink, or food, with drugs without your knowledge before you drove.
It was an emergency and you had to drive someone who was ill or injured while under the influence of drugs to the hospital. Here, waiting for an ambulance, getting a lift, or a taxi would have not to be options.

You should remember that a special reason is not a defence. Although it may allow you to escape a driving ban, you will still have a conviction for a criminal offence.

What is being in charge of your vehicle over the specified limit for drugs or while unfit to drive?

You could commit the offence of being in charge while over the limit for drugs or while unfit to drive, even though you were not driving if you still had control of the vehicle. An example of this would be where the police found you asleep in your car and it was shown that you were over the specified limit for a drug or unfit to drive. Here, you would have a defence if you could demonstrate that there was no likelihood that this would remain the case by the time you drove again because of the time that would pass.

The punishment for being in charge of a vehicle when over the specified limit for drugs or unfit to drive through drugs is:-

A period of disqualification or 10 penalty points
In severe cases, a prison sentence of up to 3 months

Suppose the court imposes 10 penalty points, and you already have points on your licence. In that case, you will be banned from driving under the totting up system unless you successfully argue Exceptional Hardship.

Why should I use Speeding Law Solicitors for my drug driving case?

As can be seen from the above, drug driving is a complicated area of the law with potentially severe consequences. Therefore, you should contact us if you are facing such an allegation. We offer a free initial consultation and then very reasonable fixed fees so that you know exactly where you stand financially. We cover all police stations and magistrates’ courts throughout England and Wales. Our senior solicitor, Philip Hatvany, an expert in motoring law, consistently receives 5-star Google reviews from his many satisfied customers. Ring him now on FREEPHONE 0800 909 8110 for a FREE initial consultation.