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Driving Whilst Above the Legal Limit for Cannabis

In March 2015, a new offence of driving whilst above the legal limit for cannabis was introduced. A limit of 2µg/l (i.e. 2 parts per million per litre of blood) was introduced for the drug. Unfortunately, unlike with alcohol, there is no way of knowing how much cannabis will place you over the limit or how long after cannabis consumption a driver will fall below the legal limit.

This page discusses some of the issues which commonly arise when defending a drug driving charge.

Being Stopped by the Police

The police have the power to stop any vehicle even if there are no grounds to suspect that the driver has committed an offence. During busy periods where the risk of offences being committed is perceived to be higher, they tend to carry out more random stops and may set up checkpoints in the road for this purpose.

The Preliminary Drug Test

If the police have reasonable cause to suspect a driver may have a drug in their system, they have the power to carry out a preliminary drug test which is normally carried out following the initial stop. There are three preliminary drug testing devices which have Home Office Type approval, one of which can only be used at the police station and two which can be used anywhere.

A positive saliva test is not always necessary for a lawful arrest to take place for driving above the limit for cannabis. However, it is one of the two routes available towards a lawful requirement for a sample of blood to be obtained as evidence. The other is that a healthcare professional has advised the police that the suspect may be suffering from a condition that may have been caused by a drug.

Cannabis Driving – Procedure for Obtaining a Blood Sample

Unlike with alcohol in relation to which samples of breath, blood or urine may be obtained, blood is the only type of sample for which there is a limit for cannabis. Urine samples cannot be used to support a prosecution for being above the legal limit. They may be obtained but the results of analysis can only be used as evidence in relation to a charge of driving whilst unfit through cannabis.

Before a lawful requirement for a blood sample can be made, the police must ensure that they have obtained a positive preliminary test or that a doctor/healthcare professional has advised that the suspect is suffering from a condition that may have been caused by a drug. Failure to do so will result in the requirement for a sample of blood being unlawful and the result of any subsequent analysis being inadmissible.

There are other parts of the procedure which are mandatory. This means that if they have not been followed, the results of the analysis cannot be relied upon as evidence. The procedures are set out in MGDD (Manual Guidance Drug Driving) forms which are intended as a plain man’s guide to the procedures which should be followed. A departure from these procedures may result in acquittal. See our case studies below for examples of where cases have been dismissed due to a lack of evidence of the correct procedures having been followed.

Consent to the Taking of Blood Sample

If a requirement for a blood sample has been made then the suspect must provide their consent to the taking of the sample both to the police and the healthcare practitioner who takes the sample. Unless unequivocal consent is obtained, a sample of blood should not be taken.

As the police are well aware that blood is the only type of sample which can be obtained to support a prosecution, our experience has been that they often apply pressure on the accused to provide where some reluctance may have been expressed initially.

The role of the healthcare professional is to decide whether there may be genuine medical reasons as to why a blood sample should not be taken, obtain valid consent to the taking of the sample and obtain the sample. A genuine phobia of needles can be a medical reason as to why a sample of blood should not be taken and may be a defence to a charge of failure to provide a specimen for analysis on the basis that it was a reasonable excuse. If the healthcare professional takes the view that the phobia is genuine they should advise the police accordingly. If the decision to provide sample was a result of pressure applied by the police or healthcare professional which fell outside the procedure set out within the MGDD/B document then the sample may have been obtained unlawfully.

If the healthcare professional has difficulty drawing sufficient blood from a vein, it may be that he or she falls foul of the law which states that only one sample may be obtained. The case of DPP v Dear (1988) 87 Cr App R 181 states that only one specimen taken upon one single occasion from the body of the subject which had to be divided, one half retained by the police and the other offered to the accused. If the sample is made up of samples obtained on two different occasions then the analysis cannot be admitted as evidence.

Requiring the Attendance of the Healthcare Professional

The police sometimes overlook the importance of obtaining and serving a statement from the healthcare professional detailing their involvement in the taking of the blood sample. The healthcare professional’s evidence normally takes the form of a certificate (HORT/5). The law states that the attendance of the healthcare professional may be required up to three days before the date of the trial. The healthcare professional is an independent contractor who may have difficulty attending Court at such short notice. If a real issue is raised that results in their attendance being required, they must be in attendance otherwise the prosecution will not be in a position to prove that the sample was obtained lawfully.

Medical Defence

A statutory defence may apply where cannabis has been legally prescribed by a doctor and driving was not impaired. However, cases of prescription cannabis are rare in the UK, much rarer still are cases of prescription cannabis ingestion where the patient has complied with medical advice and yet exceeds legal thresholds – the value of 2µg/l has been judged to be sufficient to rule out exceeding the threshold for medical purposes.

Challenging the Analysis of the Blood Sample

Since the breakup of the Forensic Science Service (FSS) in 2012, the contracts for analysis of blood samples have been issued to several independent laboratories across the UK. When the Home Office issues contracts of this nature, cost-cutting tends to be the main consideration which has result in poor working practices becoming commonplace. The ongoing police investigations in relation to the Randox laboratory (Operation Churchill) in relation to the contamination of sample data is perhaps the most extreme example of poor practice which has resulted in many hundreds if not thousands of prosecutions collapsing including some of our client’s own cases.

Evidence of the analysis itself is not normally introduced from the analysts who carried out the work on the sample but from Reporting Officers who provide expert reports detailing the results of the work carried out at the laboratory. There are normally at least 6 different forensic scientists who handled the sample received by the laboratory at one time or another, most of whom will not provide statements unless asked to do so.

Expert witnesses are permitted to comment on the evidence of other witnesses. Reporting Officers can comment on results once the analyst had produced some evidence of the analysis. Making all the analysts write statements for every single sample would be prohibitively expensive and time consuming. It would destroy the whole forensic market. The FER (forensic examination record) normally states that witness statements can be obtained from the analysts if required. In some cases there may be no statements from anyone involved in the sample continuity and no paperwork to establish proper handling and storage of the sample. In such cases the Court may be reluctant to accept the evidence of a Reporting Officer, who never saw the sample and did not supervise any of the work carried out on the sample. To do so would make it impossible for the Defence to challenge the reliability of the analysis and continuity relating to the blood sample.

Part 19 of the Criminal Procedure Rules requires that where a request is made for the analytical data upon which the results of the analysis of the sample are based, the Defence must be provided with copies or a reasonable opportunity to inspect it. The difficulties the Crown Prosecution Service has had in complying with disclosure obligations has been well documented. Owing to the pressures of time and lack of resources the police and CPS do not always deal with requests for disclosure efficiently which often results in difficulties when cases reach trial.

Potential Penalties

Motorists convicted of being over the legal cannabis threshold of 2µg/l can expect to face criminal prosecution. The magistrates’ court will take several factors into account such as repeat offences, erratic driving, risk of injury to others, and damage to other vehicles or property.

Penalties if convicted of driving above the limit for cannabis include:

  • 12 – 36 month driving ban
  • Prison sentence of up to 6 months (reserved for more serious cases)
  • Unlimited fine – judged case by case
  • Criminal record – this can hinder foreign travel
  • Licence endorsed for 11 years – a record of the conviction will be endorsed on the defendant’s licence, leading to higher insurance premiums

If pleading guilty to the offence then you can expect a ⅓ reduction in the fine imposed.

The prosecution operates on the basis that most people plead guilty at the first hearing and prepares their cases accordingly. They normally provide little by way of evidence before the first hearing

Your Case – Your Choice

You may decide to plead guilty and by doing so simply accept the word of the police and the laboratory that all procedures for obtaining, handling and analysing the sample were followed correctly. Alternatively you could choose to defend the charge. The vast majority of our clients who have chosen to do the latter (defend themselves) have looked back on it as one of the best decisions they have ever made. This is borne out by our outstanding acquittal rates for drug driving which is 94 % in relation to clients who have maintained their not guilty pleas through to trial.

Read Our Case Studies

We were able to successfully appeal against our client’s conviction for drug driving. The prosecution was originally based upon an analysis performed by Randox Testing Services in Northern Ireland which has since been tainted by a criminal investigation surrounding contamination of samples and the misconduct of its employees. The prosecution were able to secure numerous adjournments of the trial whilst seeking to obtain evidence of a re-test of our client’s sample. It transpired that the sample had originally been received by the Randox Laboratory where it was kept for 9 months before being sent to the second laboratory where it was re-tested.

There was no evidence to show which employees had handled the sample whilst it was Randox, how and where it was stored before being re-tested. The disparity between the results reported by the two laboratories as well as there being evidence of some contamination of the blank samples led to some doubt relating to the integrity of the analysis. In spite of this our client was convicted originally based upon the evidence of the retest. The a conviction which was appealed successfully in the Crown Court. The Crown Court Judge held that he could not be sure that the sample had not been contaminated whilst it was within the custody of Randox and accordingly upheld our client’s appeal.

After our client had pleaded not guilty to a charge of drug driving, the prosecution served a video which recorded the procedure followed when a requirement for a blood specimen was made of her. The video recorded everything that was said by the officer who was carrying out the evidential procedure. This established that our client was not provide with a warning of prosecution and therefore was not made aware of the penal consequences of failing to provide. As this was a mandatory part of the statutory procedure, the case against her was dismissed.

Our client was charged with failure to provide a blood specimen. The case was defended on the basis that our client was unable to provide valid consent to the taking of a sample of blood as he lacked the required capacity to understand what was being requested and the consequences should he fail to do so. The requirement was made after our client had been admitted to hospital following a head injury. An expert report was served to support our client’s defence based on the hospital records obtained and the evidence. The Court accepted our expert’s evidence and held that it could not be sure that the police had followed the correct procedure by making the requirement whilst our client was incapacitated due to the effects of the head injury. The case against our client was therefore dismissed.

Our client had agreed to provide one specimen of blood for analysis but when the nurse attended the obtain the sample, she had difficulty drawing sufficient blood. Numerous attempts were made to obtain a sufficient sample as a result of which the blood analysed was made up of several different samples taken on separate occasions. Initially no statement was served at all from the nurse but it was eventually served two weeks before the trial. The prosecution applied for an adjournment on the day of the trial as the nurse had not been asked to attend Court. The Court refused the application made by the prosecution; as a result the prosecution offered no evidence and the case against our client was dismissed.

It was made clear at the start of the case when our client entered a plea of not guilty that the results of the analysis of our client’s sample of blood were not accepted. Despite us having written to the CPS on several occasions, at no stage was an expert report served by them. This resulted in there being no admissible evidence of the results of the analysis at all by the day of the trial.

Numerous issues were raised regarding the procedure carried out by the police and the analysis which was carried out in relation to the taking of the blood sample. The police had incorrectly identified the officer responsible for carrying out the procedure. When it eventually served the relevant paperwork one day before the trial, it became clear that it was a completely different officer who had carried out the evidential procedure to the one previously identified. As that officer did not attend the trial, the prosecution found itself in no position to prove that the procedure had been carried out correctly and the case was again dismissed.

Again the results of the analysis of the sample of blood obtained from our client were taken issue with. A request was made for copies of all the analytical data upon which the analysis of our client’s sample of blood was based. The prosecution served a report from the Reporting Officer employed by the laboratory but failed to provide copies of the analytical material upon which the result was based. They were therefore in breach of the Court Rules in relation to expert evidence and the Court refused to allow them to rely on its expert evidence. Without the expert evidence the prosecution had no other means or proving the amount of the drug in our client’s blood and the case was dismissed.

Our client was charged with failure to provide a sample of blood for analysis. No preliminary sample was obtained from him and no drugs were found in his possession – in spite of this the police insisted on arresting him because they believed his pupils were dilated and he was in possession of an offensive weapon (which turned out to be his car’s thief lock). When the case proceeded to trial, the officer responsible for the procedure had no recollection of any healthcare professional having provided an opinion that our client was suffering from the effects of a drug. As there was no evidence of any lawful requirement for a blood sample, our client was found not guilty of failure to provide a sample.

It is common for the issues to arise when a drug driving charge is defended. If you would like to discuss how you could potentially defend the case against you, please call our office free now on 0800 4334678 to speak to a specialist solicitor or complete an enquiry form.