Did you know that you can only be prosecuted and convicted of drug driving if the prosecution have the results of a blood sample which are over the prescribed limit:
All of the limits outlined in the table above are limits in blood. There are no prescribed limits in breath or urine as there are in alcohol:
- Breath 35ug in 100ml
- Blood 80ug in 100ml
- Urine 107ug in 100ml
If the police are unable to obtain a blood sample perhaps because of ill-health or you have a phobia of needles they may choose to move to obtaining a sample of urine. The police do not have ways and means of testing breath for the presence of drugs.
Moving to urine creates problems.
They cannot charge the offence of drug driving and will have to consider another offence known as “Driving whilst unfit through alcohol or drugs”.
This offence is notoriously difficult to prove. The police must show that you have drugs/alcohol in your system, that you are impaired, as a result of the drugs and due to that impairment you are unfit to drive. They will require expert and medical evidence as well as physical evidence.
Presence of a drug in your urine will not automatically render you “unfit to drive”. The prosecution must show a causal link between the presence of the drug and being unfit.
Poor Driving
Of course, evidence of poor driving such as speeding or inconsiderate manoeuvres eg as overtaking on the inside or cutting in too close to a vehicle is not of itself evidence of impairment. Many drivers drive badly, hence the thousands of motoring offences. Offences of due care, traffic light offences, mobile phone offence inter alia. But not all would have been as result of the influence of drugs – some people are just bad drivers. To secure a conviction for driving whilst unfit the prosecution must prove that the “bad driving” is there is evidence of that is due to the influence of drugs.
The Romberg Test
The police should ask you to undertake a “Romberg Test” 1. this is a neurological test and does not of itself demonstrate whether you are “fit or unfit to drive”. The police will complete what is known as an MGDD/F form which goes through each test. The officer will then normally state whether you have passed or failed, however, this is impossible to know because there is no marking criteria. The end result will show you how good your balance and co-ordination is and nothing more. If you suffer from neurological disorders, you would usually perform poorly and that has nothing to do with levels of drugs or alcohol.
Urine Test
If you cannot give blood for good reason, then the police will normally move to a urine sample. They must ensure that they follow procedure properly.
- Obtain sample 1 ensuring the detained person empties their bladder and discard that sample
- Obtain sample 2 then split that sample into two giving one to the detained person if asked. (usually they will offer it).
If they take two samples from one flow of urine the results will be invalid. Often the police do this. If they fail to split it or provide a sample to the detained person if asked then they cannot rely on their results.
Laboratory Analysis
The police will send their sample off for analysis (usually along with yours if you have not accepted it). Often the analysis is flawed and can be challenged. Urine analysis is unusual compared to blood analysis so the scope for error is wider.
In addition, the results are difficult to judge because there is no prescribed limit in drugs. The police will often charge being unfit for drugs because there is some indication of drug use ie delta9-THC-COOH. This will only show that sometime prior to the test the detained person used cannabis. It cannot indicate whether that person would have had levels which would render them unfit to drive.
If you have your sample, you may get that tested3 and our advice is to get it tested sooner rather than later keeping it in a fridge until you do.
In conclusion, the offence of drug driving was introduced when the science enabled drugs in blood to be measured. It is much easier to prove when someone is above the limit than trying to show that they had drugs in their system, those drugs caused impairment which rendered them unfit to drive. Prior to the introduction of the drug driving legislation in March 2015 offences of driving whilst unfit were seldom prosecuted unless quite obviously very high and there was evidence of appalling driving.
So if you have been arrested on suspicion of driving whist unfit or have been charged with driving whilst unfit please give us a call as soon as possible so that we can give you quality advice that just may save your driving licence!
Remember our initial advice is always Free.