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Our Specialist Solicitor, Conor Johnstone, discusses Drug Driving with Sky News.
A new drug driving offence was introduced in 2015. This made it an offence to drive a vehicle on a road or public place whilst over a prescribed limit. The Government intended to come down hard on drug drivers and therefore introduced a ‘zero tolerance’ approach. However, by understanding the law fully, and taking advantage of inaccuracies in police procedures, M.A.J. Law Solicitors have continued to avoid convictions for clients charged with drug driving.
If you are currently waiting for the results of your blood test, it is important that you call us immediately. There are steps that can be taken now to place pressure upon the police. M.A.J. Law have had a number of cases dropped prior to first court hearings (even if the results are over the limit).
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
Following the introduction of the new laws, there have been practical problems for the police and CPS. Many police forces still do not have the required drug kits for roadside use and many police officers have never been trained to conduct the correct procedures. The outcome is the creation of a serious offence that isn’t being correctly enforced, investigated or prosecuted. This can be used to your advantage (see our case study below).
Even a basic understanding of the new law can help you avoid a conviction.
If you have been charged with drug driving please call us for free initial advice as to your options. If you are awaiting blood results, or have been bailed back to the police station, please call us immediately. Important action can be taken, even at an early stage, to try and avoid a prosecution, conviction and a penalty for drug driving. The earlier we can intervene, the sooner we can make a difference.
(Drug Driving Case dropped before first court hearing)
“I honestly cannot thank M.A.J. Law enough. Entering 2019 with a criminal record would have been awful. I can now get back on track and focus on enjoying the New Year. Thanks again.”
There are many different ways to defend a drug driving allegation. You may have a defence without realising.
This defence applies where:
The obligation falls on the defence to establish an ‘evidential basis’, such as a prescription or statement from a doctor. It is then for the CPS to prove, beyond doubt, that the defence do not have a legitimate medical reason. This is extremely difficult, particularly where documentary evidence, or expert evidence, is presented by the defence.
M.AJ. Law has developed a number of defence strategies and technical legal arguments to win drug driving cases. Our complex defences usually relate to the four key defence areas;
Labelling errors, inadequate training, staff fatigue and boredom are also capable of producing a false positive result.
The starting point when defending a drug driving blood case is to consider whether the police officer conducted the correct evidential procedure. If he didn’t – the case goes no further.
The most important procedural documents are the MGDDB, MGDDE and MGDDF. These are guides that were first introduced to generalise police procedures and to help prevent officers from obtaining unreliable and unlawful evidential blood & urine samples.
This document outlines the procedure when obtaining an evidential blood or urine sample at the police station, including the important legal requirements that must be given to you. The MGDDB document is outdated and particularly complicated, requiring an officer to consider issues such as consent, sample continuity, reliability and storage (all of which he’s unlikely to have been trained on).
Your evidential sample of blood or urine will be sent to an independent laboratory for analysis. The results returned from the laboratory could form the basis of the prosecution’s case against you. It is therefore crucial that the results are accurate and reliable. The MGDDE document allows an officer to document supplementary information about the drug consumed, the timings of consumption and any symptoms you might be suffering from. A failure by an officer to complete this booklet, or some parts of it, may prevent the lab from carrying out ‘secondary checks’ for reliability purposes.
As a specialist solicitor challenging a drug driving case, I would need to check the technical data-packs and quality assurance certificates provided by the lab.
Marcus Johnstone
Arguably the most important piece of evidence, this booklet contains the Field Impairment Test (FIT). The FIT is a test designed to assess the level of impairment in an individual (usually a driver). The test contains a number of sections aimed at assessing the extent of the impairment. The test includes;
Following the introduction of the new drug driving offence on the 15th March 2015, many officers now believe that the FIT is no longer required (as under the new offence it is not essential to prove impairment). However, what they fail to realise is that if the original drug driving allegation fails, they have no evidence to then prove the ‘lesser’ offence of driving whilst unfit through drugs (as it’s then necessary to prove impairment). Please also note that you don’t actually have to take part in this test if you don’t want to…
We are happy to provide free copies of the above procedural documents upon request. If you do not recall these being completed in your presence, it’s important that you call us immediately.
By law, you must provide your ‘clear and unconditional’ consent to the taking of the blood sample. An officer should not place improper pressure on you to provide a specimen of blood if you do not want to. The option will always be yours.
If you provided a sample of blood, the medical practitioner should fill out a consent form known as an ‘HO/RT/5 Certificate’. This certificate establishes legal consent. What the CPS often fail to realise is that this certificate is ‘time sensitive’ by virtue of Section 16 RTOA 1988. This means that if it is not served on the defence seven days before the trial, it is automatically rendered inadmissible – meaning it can no longer establish consent. Even if the CPS do serve it within the required time-frames, but the defence reject it not less than three days prior to the trial, it is excluded. The CPS are still obliged to prove consent to the criminal standard so the only alternative is to bring the medical practitioner to court to provide live evidence. You can guess how many medical practitioners attend court with three days notice… No practitioner, no case to answer.
Continuity is more important than you think.
In any case involving exhibits or ‘real’ evidence, the continuity chain must be recorded. Lack of continuity can be fatal to a prosecution. This is even more important in cases involving forensic samples, such as blood and urine. This is because of the risk of contamination and the effect of adverse storage conditions. The prosecution will often argue that the existence of a unique barcode on the Streamlined Forensic Report that matches the barcode on the vial is sufficient to establish continuity. This is wrong.
Let’s assume that blood was taken from you by a medical practitioner at a police station. You’re informed by the police that your results will be returned in approximately 6 weeks. If you’re over, you’ll be charged. If you’re under, there will be no further action.
6 weeks later the police inform you that your sample was analysed and tested positive for an illegal drug. You’re going to be charged and bailed to court. Can you trust what the police have told you?
Certain drugs, like THC, cocaine and 6-MAM are very unstable, meaning they can change in concentration depending upon their environment. There are methods, protocols and procedures in place to ensure that your sample is evidentially reliable, yet time after time we find that these protocols are not complied with.
Read our 2017 Drug Driving Case Study
Drink Driving Loophole Discovered
An immediate problem for anyone charged with drug driving is the fact that the above limits are largely meaningless (unless you happen to be a chemist, doctor or pharmacologist). If you take any of the above prescription drugs, just how many tablets can you take before being over the limit?
Unlike drink driving offences, it’s difficult – if not impossible – to work out what the new drug driving limits actually mean, making much easier to break the law. Please remember that you can still be found guilty even if you did not intend to be over the limit.
Even if you avoid a drug driving ban, this does not necessarily mean that you are completely off the hook. If the CPS are still satisfied that they can prove ‘impairment’, they may charge you with an offence under Section 4 of the Road Traffic Act 1988, which could result in a minimum 12 month disqualification. However, as mentioned above, if the police failed to carry out a Field Impairment Test (FIT), they will have to convince the court that you were impaired due to other ‘circumstances’ (such as a collision, your appearance, an officer’s opinion), this can be difficult is defended correctly.
If you have been accused of drug driving it is crucial that you contact M.A.J. Law immediately. We may be able to take steps to prevent the CPS from charging you with additional offences, or even charging you at all.
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won
89%
of Drug Driving
Cases Won