There are numerous issues to resolve before a law can be brought into force, not least the ability of the police to reliably determine the presence of drugs and the fact that prescription drugs would also fall within scope, says Andrew Church-Taylor
In the Queen’s Speech last month, it was announced that legislation will be enforced to make drug-driving a specific offence, doing away with the anomaly in the impaired driving legislation that drink-driving was treated somewhat differently from drug-impaired driving. To be subject to the procedures in respect of drink-driving there needed to be no requirement of impairment but merely a reason for administering a breath test, and then, resultant on that breath test, prosecution or otherwise. Where a driver was suspected to be unfit to drive through drugs there needed to be a question of impairment – that impairment to be ascertained by a field impairment test followed then by the requisite procedure.
This difference may be due to the fact that when the legislation was enacted drugs were perhaps not as common a problem as they are today and, indeed, in a recent survey carried out by car insurance companies, a significant number of young drivers reported that they had driven after having taken drugs. I do not want to come over all Clarkson-esque with regard to this but it is surprising that people are prepared to frankly make such admissions. Furthermore, if these people are caught following the enactment and implementation of the legislation then perhaps they can look to themselves when seeking to apportion blame.
I suspect that the drafting of the appropriate sections of the Crime, Communications and Court Bill will prove a little more difficult than the task of the speech writers who fed the government spokesman with the phrases and buzz words that heralded the announcement for a new law. It is common ground that the anomaly needs to be addressed but there are numerous difficulties thrown up by the task in hand.
Evidence of impairment
The first and most fundamental question is whether there needs to be some evidence of impairment to justify the administration of the screening sample at the roadside. For drink-driving the police officer needs to have reasonable suspicion that the driver has consumed alcohol. That does not necessarily have to affect the motorist’s ability to handle a car. The police officer may stop the driver because, for example, the vehicle is showing up as not being insured on the police national computer. If the officer then smells alcohol on the driver’s breath, the breath testing procedure can be carried out.
With regard to drugs, would there need to be a condition present of some impairment for the procedure to be carried out, or will it fall into line with the drink-driving legislation? It is perhaps easier to smell alcohol on a motorist’s breath than to ascertain whether somebody has taken drugs or not, particularly given the proposed range of drugs that will fall into the prescribed category.
Going on from there, the road safety minister pronounced, in the context of what drugs will be covered by the legislation, that “if it is written on the packet that people should not be driving and then they kill somebody they are as guilty as anybody else”. Given that only prescription drugs come in packets with warnings against driving, and I have yet to see local heroin dealers issue such sensible and pertinent advice, does this not lead to a further consideration? Many prescribed drugs suggest that they may cause drowsiness and, therefore, the advice given is not to drive.
However, what if the side effect of the drug does not manifest itself with all those who take that particular drug? It may become a prescribed drug for the purpose of the legislation but may not affect the driving of each individual. When it comes to alcohol, consumption is permitted up to a certain point; therefore, we have a limit of 35 in breath and 80 in blood. There is no such limit, however, with regard to drugs. So, while the so-called ‘posh boys’ who run our country can quaff their Chateau Lafite and stop after one and a half glasses, how does that impact or indeed compare with the man who is lawfully and legitimately taking drugs without any side effects or impairment on his driving but falls foul of the new regime?
Of course all the rules, whether as regards to drugs or drink, are determined on the ability of the police to ascertain reliably the presence of drugs or indeed alcohol in someone’s breath/body. We are told that there are a number of devices that are out in the field being tested. There have been some reservations expressed regarding the potential reliability or otherwise of the devices. Unless such problems can be overcome, then, whatever the pronouncement or intentions, the law will not be able to be brought into force without the means for testing.
These new rules would, of course, give motoring lawyers once again the opportunity to feed off the fat of the land, but that should be no justification for their introduction as currently proposed.
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