Drug drive cases dropped as Labs fail to produce blood analysis

The BBC reported ¹ that in Scotland nearly 400 drug driving cases were abandoned due to lab delays.

Driving above the prescribed limit for drugs was introduced in March 2015. The police are able to do a roadside test for cannabis and cocaine but can also arrest if they suspect you are under the influence of drugs.  You will then be taken to the police station where you would be asked to provide a blood test. Failure to provide one will result in an immediate prosecution.

Your blood sample will be sent off for analysis to approved laboratories where they can test for 17 substances² Fiona Douglas, Director of forensic services has stated “ demand for drug-driving toxicology analysis has far outstripped what was estimated when the new offence was introduced in Scotland in 2019”  The same applies to the rest of UK since the offence was introduced in 2015.

The issues in England and Wales arise due to a number of factors:-

1. Unlike alcohol there is a zero tolerance which means that limits for illegal drugs are extremely low much lower than the levels recommended in the Woolf Report This means that there is a higher proportion of prosecutions as more people find themselves over the limit despite not being impaired. For example the limit for cannabis is 2.0ug/L blood the recommended level by Woolf was 5.0ug/L had the Government followed the scientific guidance the police there would be far fewer prosecutions. The same applies to cocaine and benzoylecgonine (BZE). The level for Cocaine is 10ug/L blood not 80ug/L as advised and BZE is 50ug/L when the recommended level was 500ug/L blood. This presents not only problems for laboratories because there are far more cases but also for the entire criminal justice system which is close to meltdown in case management. District Judges moan at the level of NG pleas but with limits so low and often defendants coming in at 0.1 over the lower level it is no wonder that defendants want to test the system with so much to lose. The minimum disqualification is 12 months and if your job is on the line you will want to ensure that the analysis is accurate. The fact is the law itself creates more not guilty pleas – more trials and therefore more requests for a full report and the analytical data pack (ADP) from that analysis. Many of our own cases have shown errors in the ADP after our own analysis which has led to discontinuance. This has the effect of increasing the number of NG pleas in the hope that the ADP shows lab error.
2. The Randox testing issues have meant there are over 10k re-tests on top of the growing number of re-tests. We have had numerous cases where defendants have been convicted overturned as a result of the difficulties with Randox. There is still a back log of Randox re-tests.
3. This reflects the Govt providing authorization to unsuitable laboratories.
4. The number of trials generated increase the number of full reports required and laboratories are failing to produce these full reports or disclose the ADP to the defence to undertake their analysis this results in cases being dismissed or discontinued.

How can the pressure caused by drug drive offences be reduced?

1. More funding in the system which is unlikely.
2. Increase the limits to those advised by Woolf to reduce the number of cases and reflect those cases where drivers are impaired.
3. Introduce a prosecution level similar to that of excess alcohol ie 40ug/l not 35/L as the limit in law. A policy could be introduced to only proceed with drivers where there is impairment and the result is as per the Woolf report advised limits?
4. Strict application of the Criminal Procedure Rules earlier, at present the Courts are allowing numerous adjournments to the prosecution to get these reports. Strict application would wean out the weak cases put a stop the demand for that report and thus reduce overall demand for reports which may give the labs a chance to catch up.
5. Stop all Randox re-tests, re-open and set aside all convictions. Bearing in mind many of these drivers will be innocent and have served a disqualification in any event. This would, at least take some pressure of the laboratories as well as the courts if the Crown Prosecution Services applied automatically to have the conviction set aside and then offered no evidence – it could be done administratively.

The arguments against these would be that the public want the Government to be hard on drug and drink drivers. This is probably true  but they would rather that drivers who are a real risk with levels of impairment are prosecuted promptly and efficiently rather than the farce we have at the moment. The prosecution will proceed with the lowest levels such as 2.1 in cannabis putting pressure on the system so that the analysis on cases with 9ug/L + have to be dismissed because the labs have not produced the evidence.

The unforeseen problems were so obvious to practitioners, it is difficult to see why the Govt could not see them.  IF you prosecute zero tolerance you are bound to generate more prosecutions. The police still stop more and proceed on the slightest whiff of cannabis despite there being no evidence of impairment. Drug use is prolific particularly in the younger generation so it should come as no surprise that at zero tolerance more drivers unwittingly fall foul of the law.

The Govt/ police commitment to tackling drug driving remains unchanged despite the issues around testing and court time pressures.  We say do not exacerbate the problem – increase the limits to those in the Woolf reports – have a clear policy to only proceed with arrest where there is clear impairment.  This will reduce the number of prosecutions – the number of cases requiring testing and ensure that the analytical evidence is of good standard and promptly delivered on the more serious cases.

To reduce the risk of drug driving companies must educate their drivers⁴

Andrea Clegg

8^th July 2022

1. ^{https://www.bbc.com/news/uk-scotland-61869501}
2. ^{https://roadtrafficdefencelawyers.co.uk/drug-driving-3/}
3. ^{https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/167971/drug-driving-expert-panel-report.pdf}
4. ^{https://drivebright.auriga-advocates.com/course/drug-driving-awareness-course}