Like drink driving, drug driving relates to the amount of a particular substance in your body, namely specified controlled drugs. And unlike driving whilst unfit through drink or drugs, it is not necessary for the prosecution to show that you are impaired. All that is required is that you have too much of a prohibited substance in your system. The penalties are often serious, and will, save for in the most exceptional cases where special reasons are successfully argued, lead to a minimum disqualification of 12 months, and likely further punishment.Â
Some of the factors which impact the seriousness of the charge are:Â
At Graham Walker Solicitors, we specialise in defending drug driving charges. We’ll provide honest, practical advice and fight to protect your licence.
Unlike drink driving, which only has three values, namely the limits for alcohol in urine, breath, and blood, drug driving is complicated and relates to many substances—too many to list here. What you should know however is that the limits are low. You could find yourself being over the limit days after consuming controlled substances.Â
Drug driving cases require the utmost of scrutiny. They involve many steps, from the initial stop, administration of the roadside test, arrest and the taking of a sample, and testing the same. Our knowledge and experience enables us to properly question the way each of these steps has been carried out.Â
Under section 163 of the Road Traffic Act 1988, you must stop if requested to by a constable in uniform. It is a separate offence not to. The section is very clear; however, that does not mean that the Police can do whatever they want, whenever they want. There are certain restrictions to their powers that limit when they can stop you for drug driving:Â
Whilst the restrictions are small in number, it is nevertheless essential to instruct a specialist solicitor who knows what to look for and how to present the argument properly.Â
Under section 6 of the Road Traffic Act 1988, a constable is empowered to carry out roadside tests in certain circumstances. In cases of drug driving, the only roadside test available is a drug swab, which tests only for cocaine and cannabis. These can be administered when:Â
The constable must be in uniform to administer a roadside test, and if they aren’t then the swab is unlawful. Â
The most common way the police will obtain a sample for laboratory analysis is by taking blood. This is done at a police station or a hospital. They are permitted to request this int he court of an investigation into whether you have committed a road traffic offence under section 3A, 4 or 5 of the Road Traffic Act 1988. The sample is taken by a nurse and then split into two samples, one of which should be offered to you. There is no duty upon you to accept the sample, but it could help you in the future if the test results indicate that you were close to the limit. This is because the analysis may have been improperly carried out, or the level of the specified controlled drug could have changed over time due to the storage conditions. Please note, however, that, if you do accept the sample, it should immediately be refrigerated so that it does not spoil. And, believe it or not, blood has a shelf life, so you must act quickly if you want to retain the option of having it tested yourself later on. We have a great deal of experience in this area, and we will be able to assist you with ensuring that your sample is properly looked after.Â
Another aspect of the procedure that we have a deep knowledge of is the transportation of the sample. What should happen is that the police immediately refrigerate the sample and convey it to a Scottish Police Authority lab, where it is tested. But they do not always do this. In some cases, they even ship the transport the sample by private courier to London (!) for analysis. Not only is this a huge distance to transport something that requires to be kept in pristine condition, but it also introduces the possibility of samples being mixed up since they are moved in bulk. Believe it or not, this does sometimes happen.Â
Where a specialist drug driving solicitor really is essential is in properly scrutinising the process for establishing that the blood was tested is actually the blood that was taken from you. There are numerous stages at which various certificates are produced and relied upon by the Crown to establish the origin of the sample. There required to be challenged within strict time limits and not having a solicitor could therefore severely detriment your defence.Â
The last step before a drug driving case is potentially reported to the Procurator Fiscal for consideration is the analysis itself.
In cases where someone is accused of drug driving, the practice is for the analysis to be carried out in a large lab. The main concerns for a specialist drug driving solicitor are (1) whether the analysis was carried out properly and (2) whether the witness speaking to the analysis is actually able to do so.Â
Whether the analysis has been carried out properly depends on several factors. Presuming it is the correct sample, the question then turns to the process for analysing it. In these labs, they use a machine which tests huge quantities of samples at the same time, and not only that, but they do this over and over again. This raise the issue of potential contamination, from previous samples. Furthermore, the correct sample may have arrived at the lab, but was it put in the correct slot in the machine? And was the machine properly calibrated? A whole host of questions arises in this process and a someone who is well-versed in this process really is crucial to making out such a technical defence. Â
Then, the last step is to question whether or not the scientist who is called by the Crown is able to competently speak to this.Â
In criminal trials, there are strict rules governing what evidence is admissible or inadmissible, and what witnesses can speak to what evidence. A classic example is hearsay. Except in certain circumstances, witnesses cannot be asked what someone else told them. But in these large labs, the person who speaks to the evidence is almost never the same person who runs the sample through the machine. They might not even be in the same building. There are legal requirements for this and it may be that we can argue that the scientist called to court cannot properly speak to the result of the analysis, which would leave the Crown with insufficient evidence against you and lead to an acquittal.Â
Section 5A of the Road Traffic Act 1988 provides for two statutory defences to a charge of drug driving. The first applies both to driving and being over the limit, but the second only applies to those who are merely alleged to be in charge of the vehicle.Â
It is a defence to a charge of drug driving to show that—
It is a defence to being in charge of a vehicle whilst over the limit if you can show that there was no reasonable likelihood of you driving until you were no longer over the limit. In these cases, a toxicologist is ordinarily required. We would instruct a trusted toxicologist who will consider your position, your size, age, build, drug consumption, etc, and determine whether or not you would still be over the limit when you next intended to drive the vehicle.Â
In many cases—yes.
As we have said, drug driving cases are complex. There are several aspects of the Crown case that can be challenged, and statutory defences available to you. It is essential to instruct a solicitor with the necessary experience and skill to properly scrutinise the Crown case and present your case is the best possible way.Â
If you have been formally charged with drug driving, you will have received a citation from the Crown Office and Procurator Fiscal Service. This will fix a date, knowing as a pleading diet. The first thing you should do is contact a specialist drug driving solicitor to examine your paper work, consider your position, and provide you with easy to understand expert advice.Â
Acting fast is essential in these cases. Contact us now for a free initial consultation.Â
The early stages are often the most important, and can mean the difference between a weak and a strong defence. Therefore, acting fast is essential.Â
What would we recommend?Â
Unfortunately, no.Â
Drug driving is a strict liability offence, which means that the Crown do not need to prove you intended to drive whilst over the limit. However, that would still be highly relevant. If you did not take the drug yourself, and did not know you had consumed a specified controlled drug, then this would be a very strong argument for special reasons to be established, thus meaning that the Sheriff does not have to impose the minimum 12-month ban. In fact, successfully making a special reasons argument on this basis would likely lead to no ban whatsoever.Â
However, this is a very technical area of law, and we would highly recommend contacting us for further advice.Â
There are many factors a sheriff will take into account when assessing the appropriate disposal of a case, such as:Â Â
All of these factors are taken into consideration by the sheriff, but they will be balanced differently in each case.Â
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Together, we have over 100 years of experience successfully defending clients accused of criminal offences throughout Scotland. We enjoy a stellar reputation as highly-regarded solicitors and will do everything in our power to ensure that you get the best result possible.
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