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.