22 May 2020 - Article
A new offence has recently been created of driving, attempting to drive or being in charge of a motor vehicle on a road or other public place with amounts of any of 16 specified controlled drugs above certain limits in the driver's blood. The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 ('the DDR'), which came into force on 2 March 2015, sit alongside pre-existing legislation which makes it an offence for a person to drive or attempt to drive a vehicle if they are unfit to drive through drugs. Convictions under the new offence will result in:
- a mandatory driving ban of at least 1 year
- an unlimited fine
- a maximum of 6 months' imprisonment
- a criminal record
- evidence on the offender's driving licence that they have been convicted of drug driving, which will last for 11 years
- significantly increased car insurance costs
- potential difficulties in travelling abroad to countries such as the USA
The pre-existing law has been criticised for leading to only a small number of prosecutions, because though success depends on proving that the impairment of the driver's ability was caused by the drugs in their system, no objective standards are laid down to help this be determined. Now, if drivers are found to have amounts of one of the drugs specified in the DDR in their blood above the specified limits, they can be convicted without any need to show that their ability to drive was adversely affected or that this was caused by drug use.
Police who suspect road users of driving having taken the specified drugs in excess of the specified levels can:
- make them do a field impairment assessment
- screen them for cannabis and cocaine with a roadside drug kit to assess whether their condition might be due to the presence of drugs
- follow up roadside tests with blood tests at a police station
Drugs specified under the new law include illegal ones like cannabis and cocaine, but also some, such as Diazepam and Lorazepam, included in medicines which are either legally prescribed or available over the counter. The illegal drugs have very low specified limits, while those present in medicines have limits higher than those expected for normal therapeutic doses.
According to the Department for Transport, people who use the listed drugs legitimately following the advice of a healthcare professional should be able to drive without fear of prosecution. Drivers will have a defence under the DDR where:
- they were prescribed a specified drug for medical or dental purposes, and
- they have taken it as directed and in accordance with the manufacturer's instructions (where the instructions are consistent with the directions from the healthcare professional), and
- their driving has not been impaired as a result
This defence will not apply if the driver ignored advice given at the time of prescribing or in the instructions about the amount of time which should be allowed to pass between taking the drug and driving.
There are a number of concerns over the new law, in particular drivers may be at risk of inadvertently breaking the law when taking some commonly used medicines.
What this means for you
- Employers should take steps to make their employees aware of the new legislation – not only those workers required to drive in the course of their employment, but also those who drive to work
- Companies should update their driving and substance misuse policies to include a recommendation that employees keep records of legally prescribed medicines with them when driving in order to speed up any police investigation if they are stopped
- Companies should conduct a risk assessment to identify those employees most likely to be affected by the new law and consider practical measures to protect them, such as drug testing procedures and awareness training.