The term “loopholes” is often used when a person pleads not guilty and is acquitted of drug driving. The vagaries of the criminal justice system often result in the prosecution being unable to prove its case. There are a variety of reasons why those who have been charged and plead not guilty ultimately avoid conviction. Some of these are summarised below.
If you’ve been arrested or charged with driving whilst above the prescribed limit for a drug it is important to consider any potential defences that may be available to you before entering a plea. Before accepting a conviction and its serious consequences, such as losing your driving licence, unpaid work or even imprisonment, your solicitor may be able to use technical defences or exploit loopholes in drug driving laws to assist you.
Driving whilst above the prescribed limit for a drug became a criminal offence in England and Wales on March 2, 2015, with specific limits set for various substances. These drug driving laws were introduced in response to an increase in drug-related driving incidents and aimed to reduce drug driving offences. In 2018, Section 5A was enacted, making it illegal to drive over the prescribed drug limits. For recreational drugs such as cannabis and cocaine, the government adopted a ‘zero tolerance’ approach resulting in limits being set at specific levels.
However, police procedures for drug driving are more complex than those that apply to drink driving, which can make it easier for individuals to leverage errors in police procedures in their favour, creating a variety of technical defences that may result in a conviction being avoided.
What Are the Most Common Drug Driving Loopholes?
Various issues within police procedure and the testing process have been persistent problems for police officers and the CPS when pursuing a drug driving conviction. This can be used to your advantage by a specialist drug driving defence firm.
The preliminary drug test
Typically, a drug driving case will begin after a motorist has been stopped by a police patrol vehicle. The police do not require grounds to stop a vehicle and may do so randomly. However, in order to carry out a preliminary drug test (sometimes referred to as a drug wipe or swab) they must either have grounds to suspect a moving traffic offence or that the person may be under the influence of a drug.
If a vehicle has been stopped as a result of an alleged speeding or other minor traffic offence the police will routinely require a specimen of saliva. If the police find drugs on a person or vehicle after a stop, a swab will often then be carried out on the basis that there is suspicion that the driver may have driven under the influence of a drug.
If the police do not have sufficient grounds to require a preliminary drug test, this may result in any subsequent arrest being deemed unlawful. The police may require a blood specimen if as a result of the administration of a preliminary drug test (drug wipe), they have reasonable cause to suspect that a person has a drug in their body.
The drug wipe works by analysing a specimen of saliva for cannabis or cocaine. An officer who administers a drug wipe will normally be trained in their use. However, a failure to follow the manufacturer’s instructions for the device may invalidate the test result. Consequently, the procedures for obtaining a blood specimen and subsequent analysis may be excluded resulting in the prosecution offering no evidence and the case being dismissed.
Statutory warning defence
Were you provided with a statutory warning when you arrived at the police station? Under s7 (7) Road Traffic Act 1988, before providing a breath sample, blood, or urine sample at a police station, a person being charged with a drink or drug driving offence should receive a statutory warning. This warning informs them that they can be prosecuted if they refuse to provide a sample. If you did not receive a statutory warning, your case could be dismissed.
Post-consumption defence
Even if a blood sample taken at the police station shows that you were over the drug driving limit, this does not necessarily prove that you were above the legal limit while driving. A common scenario involves motorists who are stopped by the police and, fearing possession charges, consume a controlled substance before being tested at the station. Although they took the substance, it doesn’t automatically mean they were impaired or over the legal limit while driving.
Rejection of the SFR 1
SFR 1 stands for Streamlined Forensic Report 1. It’s a document that provides the forensic analysis of your sample and helps investigators follow the criminal rules procedure.
Many clients think the SFR 1 is completely accurate, but that’s not always the case. Sometimes, the report is incorrect or not done properly, allowing us to build a strong defence. The process of creating an SFR 1 is very detailed, and errors can happen. If we find problems with the report, we challenge it and request a second, more thorough report called SFR 2, which gives a complete evaluation.
Continuity of the sample defence
Maintaining the integrity of the sample taken is critical in every drug driving case. If the police can’t prove this, the charges could be dropped. There’s always a risk of contamination or damage if a sample isn’t stored properly. The Crown Prosecution Service (CPS) must show that the sample was stored according to the rules.
The CPS often argues that a matching barcode on the vial and the forensic report proves the sample’s integrity, but this isn’t enough.
Police might tell people that their samples are above the legal limit for a controlled substance. Many drivers accept this as true due to the police’s authority, facing penalties that are not their fault but rather due to police mistakes. If you have received or are waiting for your blood sample results, contact us so we can build a defence for you.
Wrong chemicals used in sample storage
Like our approach to questioning how samples are handled in the continuity defence, we also ask the prosecution to prove that they used the right chemical to preserve the sample. Often, they can’t. For example, cocaine breaks down into a substance called benzoylecgonine. If the sample isn’t stored with the right chemical, it can break down even more, making it seem like you were over the legal limit when you weren’t at the time you were driving.
Medical defence and prescription drugs defence
This defence is used when someone has taken a drug that was prescribed by a doctor or dentist and has taken it according to the doctor’s instructions. Additionally, the possession of the drug must not be illegal under the Misuse of Drugs Act 1971. The defence needs to provide evidence, such as a prescription or a note from a doctor, to show that the drug use was legitimate.
After that, the Crown Prosecution Service (CPS) must prove, beyond a reasonable doubt, that there wasn’t a valid medical reason for taking the drug. This is very difficult for the CPS to do, especially when the defence provides paperwork or expert testimony.
Deterioration of the sources used
The defense can argue against the CPS by pointing out that the police often reuse testing materials even after they’ve worn out, to save money. Over the years, we’ve noticed that because labs have limited funds, they often reuse these materials.
When testing materials get old, they can give higher readings, leading to inaccurate results. Although the materials are supposed to be tested regularly, there’s no law against reusing them, which can make the sample results unreliable. As solicitors we will usually ask the prosecution for proof, like a certificate, to show that the testing materials were still valid and not expired.
Proving you were the driver
The new law only applies if the CPS can prove that you were the one driving the vehicle. This is often a problem for them if the police didn’t pull you over and only showed up after the vehicle had already stopped since they didn’t actually see you driving.
Driving on public roads or places
The new law only applies if you are driving on a public road or in a public place. Surprisingly, places like pubs, hotels, or supermarket car parks might be private property. The police and CPS often assume these areas are public because the public can access them, but that’s not always true.
Emergency situations
You might be able to challenge a Section 4 charge (driving while unfit) or a Section 5A charge (driving over the prescribed limit) by showing that you were dealing with a real emergency.
For example, if your child suddenly became very ill or you were trying to escape from someone threatening to harm you, you may have a valid defence. You would need to prove that you stopped driving as soon as the emergency was over and that there was no other way to get where you needed to go. This isn’t unheard of in drug driving cases and speaking with your legal defence as soon as possible can help.
What Happens if You Plead Guilty to Drug Driving?
If you plead guilty to drug driving, the court will disqualify you from driving for at least 12 months and receive a criminal record. The court may also assign a community service penalty, which usually involves unpaid work. In the most serious cases, you could face a prison sentence. So don’t assume that a guilty plea will give you a reduced disqualification. By reaching out to a drug-driving solicitor as soon as possible, you can maximise your chances of acquittal and a positive result.
What Happens if You Plead No Guilty to Drug Driving?
When you plead ‘not guilty’ to drug driving, it requires the Crown Prosecution Service (CPS) to build its case and provide evidence against you. You might be surprised to discover that the evidence is lacking or insufficient. The CPS often struggles to properly prepare drug-driving cases, especially when it comes to understanding and presenting the scientific evidence involved. Again, speaking to a drug-driving solicitor will help you with your case.
What Are the Legal Limits for Drug Driving?
As of 2015, new drug driving laws specify limits on the following controlled substances.
| ‘Medicinal’ Substance | Limit |
|---|---|
| Amphetamine | 250 µg/L |
| Clonazepam | 50 µg/L |
| Diazepam | 550 µg/L |
| Flunitrazepam | 300 µg/L |
| Lorazepam | 100 µg/L |
| Methadone | 500 µg/L |
| Morphine | 80 µg/L |
| Oxazepam | 300 µg/L |
| Temazepam | 1,000 µg/L |
There are also limits on “Medicinal Drugs” including:
| ‘Medicinal’ Substance | Limit |
|---|---|
| Amphetamine | 250 µg/L |
| Clonazepam | 50 µg/L |
| Diazepam | 550 µg/L |
| Flunitrazepam | 300 µg/L |
| Lorazepam | 100 µg/L |
| Methadone | 500 µg/L |
| Morphine | 80 µg/L |
| Oxazepam | 300 µg/L |
| Temazepam | 1,000 µg/L |
As solicitors, we encourage anyone facing drug driving charges or awaiting blood test results to seek legal advice immediately.
FAQs About Drug Driving Loopholes and Cases
What are the penalties for drug driving?
A drug driving conviction could result in a criminal record, a 1 year driving ban (minimum term), up to six months in prison and an unlimited fine.
How is drug driving tested?
Police may use roadside drug tests, also known as “drugalyser” tests, to detect the presence of drugs. If you test positive, you will be taken to a police station for a blood test to confirm the level of drugs in your system.
How long does a drug driving conviction stay on my record?
A drug driving conviction will stay on your driving record for 11 years, which can affect your insurance premiums and job opportunities that require driving.
What are common defences against drug driving charges?
Common defences include proving that you were not driving, the drug was legally prescribed and used as directed, or challenging the accuracy of the drug tests or how samples were handled.
