Cannabis Drug Driving, an issue for those taking Sativex.

CANNABIS AND THE EFFECT OF DRUG DRIVING LAWS ON PRESCRIBED DRUGS- SATIVEX

A further issue arose with cannabis namely that people suffering with Multiple Sclerosis are often prescribed Sativex which contains cannabis.   

The Government refused to set a limit which would mean those taking Sativex would fall below the limit. This despite the advice from the BMA that they should be exempt. Drivers taking Sativex of course have the defence that it has been prescribed but two issues arise from that.  Firstly that the law will force people with a serious illness to go through the trauma of being arrested and charged and then having to provide evidence of their medical condition and prescription to avoid a conviction.

It is unlikely that the police will listen to this prior to charge and these innocent patients will have to prove their innocence in court with all of the stress that a court appearance will bring especially for those suffering from MS. The second issue with this was raised by a Doctor during the consultation period that is the situation whereby people suffering with MS often take cannabis to relieve their symptoms and do so illegally. One doctor argued in a similar vein that “the lack of widespread availability of Sativex leads to many patients having to break the law to obtain illegal cannabis to control their symptoms. As a clinician I am often asked my opinion on this from patients seeking information on the safest way to use it. Commonly they are patients who cannot tolerate opioids or Non-Steriodal Anti-Inflammatory Drugs (NSAIDS) and for whom the few other options are ineffective. So many patients are prepared to break the law in order to achieve some symptom control, which the NHS can’t or won’t.”

 

In the Public Bill Committee on the Bill for this Act the Minister said as follows:

“Obviously it would cause the public some concern if that flexibility was so great that they felt the powers were not being used even-handedly. However, the police will be aware of the statutory defence of taking a specified controlled drug in accordance with medical advice. I would imagine that if a driver was able to demonstrate there and then that it was regular medication, the police might decide that it was not in anyone’s interests to take the matter any further. The CPS’s code has a requirement that prosecutors ‘should swiftly stop cases … where the public interest clearly does not require a prosecution’.

“I would hope that in a clear-cut case of, for example, an elderly constituent on regular medication, common sense would prevail straight away.”

In my experience as a Drug Driving Solicitor I am not confident that the police or indeed the prosecution will simply accept this and discontinue any action against the driver without it having to go to court. A common response is “we’ll leave it up to the court to decide”

If this is an issue that affects you call us on 01623 600645 for free and honest advice.

Amphetamine now included in Drug Driving Law

Following on from our previous post the government has now set a limit on Amphetamine. It has not gone live yet in the sense that the law that has set this limit is only a draft but it is anticipated that this will become law within a few days.

 

The limit has been set at 250 and is included in The Drug Driving (Specified Limits) (England and Wales) (Amendment) Regulations 2015.

If you are interested in Drug Driving Laws check our Drink Driving Solicitors page

For further information call us on 01623 600645

Difficulties with testing for new drug driving law

A further difficulty in testing for drugs in relation to the new drug driving laws has been raised by ROAR Forensics in a report.

Currently the police take around 5ml to test for alcohol, experts say that this will not be sufficient for drug testing  “in order to cover the proposed drugs and provide a quantitative result (notably in poly drug misusers, which is common in the UK) there will be a requirement to obtain more blood than current practice. Approximately 10ml of blood could be required compared to the current 5ml sample.”

This is not as easy as it sounds, it can be difficult to obtain that amount of blood

“To ensure that there is sufficient sample to permit the analytical requirement there would have to be a minimum volume, notably as at present it is not uncommon to receive far less than 5ml.”

But it doesn’t end there, the defendant has to be provided with an equal quantity for him to have his sample analysed.

“There is then the issue of ensuring that there is a similar volume available for the defendants sample (assuming that, as now, a divided aliquot is provided to the defendant)”

Having managed to get the correct amount of blood will the defence be able to get it tested? ROAR believe that currently there are very few laboratories that offer this service for the defence. In drink driving this may not be that significant unless the reading was very close to the limit however with all of the difficulties with actually testing for drugs this could well be a valid argument if the defence have not been given the opportunity to have their sample tested.

For further advice on drug driving call us on 01623 600645

Drug Driving back calculations

A not unfamiliar scenario with drink driving is where there is a delay between driving and giving a breath or blood test. This can occur for a number of reasons such as when someone is arrested sometime after driving or are unable to give a breath sample so a blood sample is required and it takes a while for a health care professional to take blood.

By the time the blood or breath sample is taken the driver may be under the limit. The police may believe that the driver would have been over the limit at the important time, that is to say when he was driving. They are able, with the assistance of an expert, do a back calculation to establish what the reading would have been at the time of driving.

It’s likely that the same sort of scenarios will arise with drug driving and the police will want to establish what the reading was at the time of driving.

THEY CAN’T!!

As simple as that, any delay that allows the driver to go below the limit means that there will be no way to establish that he or she would have been over the limit at the time of driving. 

Whilst the back calculation is relatively easy for alcohol for drugs, because of the many variable in what the body does to drugs, back‐calculation is much more difficult and was considered to be impracticable by the Panel set up by the government to review this.

If you have been charged with a drug driving offence call us for expert and honest advice on 01623 600645

Drug Driving, why is Amphetamine not included?

Amongst the drugs that the new Drug Driving laws has set limits for there is one notable absence. Amphetamine is a commonly abused drug and yet does not feature on the list. This is curious because a number of other prescription drugs are on the list so it seems strange that this is missed off.

There was a specific issue with amphetamine. It was accepted by the government that this drug was used as a treatment for ADHD. The expert evidence was that drivers who suffer from ADHD drive better whilst under the influence of prescribed amphetamine. For this reason the government postponed placing amphetamine on the list whilst they carried out further studies. This is likely to affect very few prescription users of amphetamine. The majority of ADHD sufferers are under 17 although there are also adults who suffer from this it. The inclusion of a limit would have affected very few drivers. 

Amphetamine is not the most common treatment for ADHD in the UK. The most common is methylphenidate (such as Ritalin), a substance chemically similar to amphetamine, but is less liable to misuse.

The Crime survey for England and Wales reported that those that reported driving under the influence of illegal drugs at least once or twice in the last 12 months 30% reported using amphetamine in the same time period. In killed drivers amphetamine was the third most prevalent detected drug in European drug use surveys.

Four European countries have a limit for amphetamine; Netherlands, France, Sweden and Norway. The recommendations from the government’s drug driving expert panel was that a threshold in whole blood for amphetamine be set at 600 µg/L

The government took the view that it was better to get the ball rolling with the less problematic drugs and add others later on. Whether this is the correct approach remains to be seen.

If you have been charged or investigated for drug driving issues call us on 01623 600645 for a free initial advice.

No Urine Tests for New Drug Driving Law

A spokesman for the Department for Transport confirmed to us today that there is no plan to introduce urine tests for Drug Driving.

He accepted that the consensus is that tests in urine are not accurate enough to be used.

In the case where it was not possible to take blood he said that the Association of Chief Police Officers had been advised to ensure that all police officers also note the suspects demeanour of arrest so that if the blood test is not possible they can charge for being unfit through drugs. In other words revert back to the old law.

The old law of course was criticised by many for being to difficult to enforce. Furthermore the noting of the suspects condition is a long way short of a field impairment test which will be required to prove that the suspect is unfit to drive.

The substantive law allows a limit to be set for urine and this can be reconsidered in the future if the testing procedure becomes accurate enough.

To speak to an expert Drug Driving Solicitor call 01623 600645

How accurate will blood tests for drugs be under new Drug Driving law?

The new drug driving law relies on blood test to establish not just whether there are drugs in the driver’s blood but also the type and quantity. Clearly accuracy is going to be of paramount importance here. The results will decide whether someone is guilty or not. Whether they are disqualified or not.

The scientific community has a lot of experience in the testing of blood for alcohol and it tends to be fairly accurate, it is rare that two tests on the same blood differ by much.

Without the experience for testing for quantities of drugs will the drug tests be as accurate. A number of commentators suggest that there is genuine cause for concern.

LGC laboratory pointed out that the analysis for drugs in blood is not as standardised as it is for alcohol due to the many factors involved. The quality of alcohol measurements is significantly better as there are Certified Reference Materials (CRMs) available to demonstrate accuracy and to give lower measurement uncertainty. The Government recognises these issues and is currently working with toxicology providers to understand the extent of any analytical variations and develop guidance to ensure any potential impacts are minimised.

Whether these issues can be ironed out before injustices occur remain to be seen.

To speak to a Drug Drive Solicitor call 01623 600645

Urine testing for Drug Driving

The new law on drug Driving is due to come into effect in March 2015. It is similar in most respects to the Drink Driving laws with one exception.

People arrested for drink driving are given a breath test first and in certain circumstances a blood test. If they are unable to provide a blood test there is the option for a urine test. The law seemingly accepting that there will be occasions where someone is genuinely unable to provide blood. 

 No limits have been set for levels in urine for drug driving. This is because all parties accepted that current testing equipment does not provide accurate results for drug levels in urine. The government raised this with representatives from medical, toxicology and academic organisations and individual academics. Not one person or organisation felt that it was possible to specify limits in urine.

 A forensic laboratory suggested that urine levels for workplace drug testing could be set. However, the Government received advice that urine samples can only “provide retrospective information about past drug use rather than provide information about the current effect of the drug on a person.”

It was accepted therefore that limits in urine could not be set.

 This raises a number of issues. Frequently people arrested for drink driving and required to provide a blood sample are unable to do so. For example they may have medical grounds for not providing a sample such as a phobia of needles. It is common for Health Care Professionals to be unable to obtain blood. This may be due to the state of the accused persons veins, either genetically being very small or damaged through persistent drug use.

If it is not possible to provide a sample of blood how will the Police be able to proceed? If the Health Care Professional states that through no fault of the person under arrest they cannot obtain blood then the police cannot charge them with failing to provide a sample because there would be an immediate defence of having a reasonable excuse, namely medical grounds, as confirmed by the police’s own Health Care Professional.

The only alternative would be to charge under the ‘old’ offence of being unfit which then undermines the whole rationale behind this Act namely that the government want a simple system for catching drug drivers. In any event if the police are concerned that the person is unfit by the time that they have summonsed a health care professional to do a blood test which fails then the effect of the drug may have worn off allowing the person detained to pass a impairment test which they may have failed if it had been conducted immediately.

 The CPS has suggested that if a medical reason for not giving blood is raised there needs to be ‘a robust investigation’ into the claim in order to prevent wide-ranging challenges. The process could involve a formal police interview under caution with the suspect and such considerations should be suggested on police forms dealing with the procedure.

It is said that the Government will work with the police suggesting that they conduct a thorough investigation of anyone claiming a medical reason as to why they cannot provide a blood sample. This misses the point and is naïve in the extreme. Unlike the offence of failing to provide a breath specimen there are very few medical grounds to put forward in relation to not providing a blood test. In practice there are two. – a phobia of needles and an inability by the health care professional to obtain blood. No amount of police interviews will make a difference to this. The detained person simply says he has a phobia of needles. This may be supported by medical evidence in due course. It may be noted on the persons medical records that they have this phobia, alternatively, as now, they will be able to give evidence of occasions when they have been asked to give blood and have refused, fainted or become ill. Clearly if someone has tattoos or is a diabetic who has to inject themselves it will be harder to persuade the court that there is a genuine phobia but failing that it will be a question that the court have to answer namely whether the phobia is genuine.

The other medical reason is that due to the condition of the persons veins the HCP is unable to get blood. In this instance the ‘robust investigation’ will be very short, the detained person simply saying ‘The HCP couldn’t get blood, further than that I can’t answer, the HCP is the expert, ask them why they couldn’t get blood’

As with other parts of this Act it does not seem to have been thought through or had any input from defence solicitors.

Knowing that there is no urine alternative it will be very tempting for motorists to refuse to give a blood sample and claim a medical ground.

If you have been charged with this offence call us on 01623 600645 for free initial advice.

How Were the Drug Driving Limits Set?

One of the difficulties in introducing the Drug Driving law has been to set appropriate limits. The government had various options. Unlike alcohol some of the drugs this law deals with are illegal.  The Government were eager not to give the impression that it was OK to use a small amount of illegal drugs and drive.

The government had 3 options –

Option 1  to set a ‘lowest accidental exposure limit’ for 8 controlled drugs most associated with illegal drug use and road safety risk based limits recommended by an Expert Panel1 for a further 8 controlled drugs.

Option 2 followed the Expert Panel’s recommendations to include 15 controlled drugs in the regulations with corresponding limits all based on a road safety risk approach.

Option 3, proposed a zero tolerance approach (that is, a ‘lowest accidental exposure limit’) for 16 controlled drugs.

 

The Government opted for option 1

 

The initial thought was that it should be a zero tolerance (option 3) but the difficulty with that was the possibility of having drugs in your system innocently, for example from passive smoking of cannabis or from taking legal drugs that contain an element of the illegal substance, this was the thinking behind the inclusion of the ‘lowest accidental exposure limit’ in relation to illegal drugs.

The Governments concern over option 2 was that it would send out a message that it was ok to take a small amount of illegal drugs.

 

Option 1 was not without it’s critics, especially in relation to cannabis. The limit proposed here and later set as the limit was 2µg  per 100ml of blood  The concern was that cannabis can show up in the system up to 24 days after smoking it.

The Government were criticised by Drugscience (Formerly The Independent Scientific Committee on Drugs (ISCD))  in relation to this approach for creating a disparity in the law “It is regrettable therefore that the Government’s chosen approach, Option 1, is to establish a new disparity in the law, where the detection of eight particular controlled drugs in a driver’s body may lead to prosecution even when the driver is not likely to be impaired, whilst for alcohol and some other controlled drugs which are no less dangerous when driving, a rational risk-based approach will be used. This rejection of a purely risk-based approach in favour of an inconsistent values-based approach does not appear to be a legitimate use of the Road Traffic Act. “

Drugscience go on to say that the option chosen by the Government gives mixed messages in that the other options take either a consistent risk  based approach derived from evidence about the drugs or a consistent Zero Tolerance approach.

The option chosen accepts the risk-based approach for some substances which are controlled by the Misuse of Drugs Act but have widespread medical uses (e.g. benzodiazepines, morphine) but takes a zero-tolerance approach to another eight (e.g. cannabis, LSD).

They say that if the Government accepts the experts’ view on some controlled drugs; that specified limits are appropriate as with alcohol, a simultaneous ‘zero tolerance’ approach for 8 controlled drugs is illogical.

There is also the issue of the controlled drugs which happen to have widespread medical uses, e.g. benzodiazepines and morphine, being used for non medical purposes and yet have a risk-based limit. So a person could use a drug such as morphine for no other reason than for recreation and because it also has a medical use they are allowed to have a higher than zero amount in their blood whereas for drugs with no medical use (and cannabis) there is a zero tolerance. It cannot be right that someone using morphine illegally can have a higher limit and drive than someone using a cannabis based drug for help with MS which is not presecribed.

Drugscience go on to say “Morphine and benzodiazepines are mentioned on many hundreds of death certificates each year, whilst LSD, cannabis, ketamine and MDMA are mentioned on between 0 and 30 or so.”

With this option the Government is proposing a contradictory message; that driving with 8 illicit drugs in the body is more serious than driving with alcohol, or any other legal high in the body. This is confusing, not to mention dangerous.

This option will also lead to 3,100 more proceedings than Option 2 (risk based testing), which must logically consist of proceedings against people who have been stopped with amounts of illicit drugs in their bodies below the thresholds of impairment set out by the Expert Panel. It is very difficult to imagine a convincing justification for how these prosecutions are in the public interest, if we agree that it would not be in the public interest to begin prosecuting people who drive with alcohol detectable in their blood, but below the existing threshold for alcohol impairment.

 

If you face an allegation of dug driving call us on 01623 600645.