Stephanie Hendry | Solicitor

Drug Driving – Scotland’s new zero tolerance approach

Scotland is adopting a zero-tolerance approach to driving whilst under the influence of drugs through the enforcement of The Drug Driving (Specified Limits) (Scotland) Regulations 2019 on 21st October 2019.

The offence of drug driving was traditionally prosecuted under section 4(1) of the Road Traffic Act 1988:

Section 4(1): A person who, when driving or attempting to drive a mechanically propelled vehicle on a road or other public place, is unfit to drive through drink or drugs shall be guilty of an offence.

The offence is tried in the summary courts (sheriff and justice of the peace courts) and drivers face up to six months imprisonment, a fine of up to £5,000 and an obligatory disqualification from driving for at least 12 months.  Under this section, it is not enough for the prosecution to show that the driver had ingested drugs; section 4 requires that the accused is shown to be unfit to drive because of the drugs. The tests available to the officer were blood or urine samples.

Prosecutions under this section are not without difficulty. In Chowdry v. PF Glasgow, 2012, a driver was stopped by police officers who subsequently detected a strong smell of cannabis coming from his car. He failed four out of five drug tests and the police deemed him impaired. 90 minutes later, the driver provided a negative breath test and had no clinical evidence of impairment by a police surgeon. The Sheriff at trial convicted the driver but the conviction was the subject of an appeal because of the uncertainty of whether the driver was actually impaired at the time he was driving.

To address this uncertainty, Section 5A of the Road Traffic Act 1988 was brought in in 2015, and created an offence whereby a driver who was either driving or in charge of a vehicle with a concentration of a specified controlled drug above the specified limit.

The 2019 Regulations have the effect of tightening up section 5A prosecutions, by reducing the specified limits of eight of the controlled drugs to almost zero. Those drugs are: cocaine, cannabis, cannabinol, ketamine, LSD, MDMA, heroin and diamorphine. Certain medicinal drugs will also have limits, but these will be based on scientic evidence, rather than zero tolerance. They are; clonazepam, diazepam, flunitrazepam, lorazepam, methadone, morphine, oxazepam and temazepam.

In their response paper, published 30 January 2019, the Law Society of Scotland advised that the Regulations will bring greater clarity for all concerned about when drivers are over the specified controlled drug limit, but warned that the public will need to understand that this new offence is a strict liability offence, which is committed once the specified limit for any of the specified controlled drugs is exceeded.

Police Scotland have unveiled new equipment to help implement the regulations – the new ‘DrugWipes’ roadside kit uses a mouth swab to test drivers for drugs in their system. If the person has taken drugs, a blue line will appear. Drivers testing positive will still have their blood tested at the police station.

Police Scotland have already used their new testing equipment on a driver in Edinburgh. The driver tested positive for cannabis and cocaine and has been arrested.

Stephanie Hendry

Stephanie Hendry

Dispute Resolution Team

'It’s vital that an understanding of the law is not reserved to solicitors. I make a point of explaining to my clients what the law is and how it applies to their case. I involve my clients in its application because it is fundamental that they understand what I am doing and why throughout their case.'

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