Drug Driving loopholes

Drug driving loopholes

The United Kingdom introduced drug driving as an offence on March 2nd, 2015. Along with the offence, the new prescribed limits were also set for each substance. Due to the rising number of drug drivers seen in recent years, the new laws were there to stop further offences and flatten the curve seen prior to 2015.

Legal Limits for Drug Driving

The new limits for controlled substances can be found below:

Prior to 2015, loopholes were prevalent in defending drug driving due to the fact that there was no legal limit present. If you had a somewhat competent legal representative, your chances of receiving a positive outcome in your case were higher.

At Parnell and Peel, we have been defending drug driving cases for over 16 years, including prior to 2015 and after the new Section 5A was introduced. During this time, we have compiled a number of competently fortified drug driving defences and identified multiple loopholes in the procedure regarding drug driving, which we will share with you in the following article.

Our “loopholes” and technical defences

Statutory warning defence

When you are taken back to the police station according to the procedure, the officer or officers must provide you with a statutory warning as detailed in Section 5A of the Road Traffic Act. If you were not provided with a statutory warning, then your case is closed. The statutory warning is when the officers will say to you that if you do not provide a sample, you will be charged with failure to provide.

Over our 16 years of dealing with drug driving cases, you would be extremely surprised at how many officers skip out on this simple, small step in this procedure. If you were not provided with a statutory warning, contact us now so we can help you safeguard your driving licence.

Post-consumption defence

Although you were found to be over the drug driving limit while the blood sample procedure was conducted at the police station, this does not prove that you were above the legal limit at the time of driving.

An example of this situation we see frequently is when the motorist is stopped by the police, and due to being worried about possession, they take the controlled substance and are then charged with drug driving at the police station. Although they had consumed the substance, this does not mean that, at the time of driving, they were impaired or over the legal limit.

At Parnell and Peel, we work in close conjunction with our senior toxicologists to obtain specialist reports and post-consumption testimonies from witnesses to prove through unbiased scientific evidence that, at the time of driving, the motorist was not above the prescribed limit.

False positive loophole

Contrary to common belief, false positives are not a rare occurrence and are inevitable with all forms of drug screening and testing due to the lack of an analytical approach to testing that is 100% accurate.

Usually, we find a false positive defence useful in defending cases in which the motorist is charged with driving under the influence of cannabis. Studies conducted have shown that many hemp-based completely legal products and the use of certain painkillers such as ibuprofen and Advil stimulate the release of endogenous substances that prevent cannabinoids from binding to an antibody and interfere with the analytical tests, providing a false positive.

Another reason we find false positives to be so common in recent years is unfortunately due to the lack of funding received by the police laboratories in conjunction with the rising employment of not sufficiently trained officers in the police force.

I mean, you wouldn't believe it, but over the past 20 years, we have seen time and time again where these officers have made the simplest and smallest mistakes, such as the mislabelling of samples, which we then prove by obtaining the analytical data pack from the prosecution and analysing it for the mistakes made by the laboratory staff.

Rejection of the SFR 1

SFR 1 stands for streamlined forensic report 1 and is a document that allows investigators and scientists to comply with the rules of the criminal rules procedure. In layman terms, it is the document detailing the forensic analysis of your sample.

Many clients that come to us will take SFR 1 as gospel, but it is far from it. In many cases, the SFR 1 is invalid and completed incorrectly, which allows us to create an absolute defence due to the methodology being extremely stringent when carrying out the SFR 1. Once we reject the report, we will then obtain a secondary forensic report, SFR 2, which is a full and extensive evaluative report.

Continuity of the sample

The continuity of the sample taken is crucial in every drug driving case, and failure to prove so could result in the acquittal of charges due to police ineptitude. Whenever a sample is taken, there is always a risk of contamination and degradation of the sample if it is not stored correctly in accordance with the rules of the procedure. When questioned, the CPS must prove that the sample was stored adequately and in accordance with the procedural guidelines.

Commonly, the CPS will raise the argument that the barcode on the vial of the sample matches the barcode in the forensic report; in no manner is this a sufficient means of demonstrating the continuity of the sample.

Frequently, the police will inform members of the public that their samples are above the legal limit for a controlled substance, and due to the authority the police exercise, many motorists will accept this to be true and suffer the penalties and consequences that were not their fault but due to the faults of the police. If you have received or are waiting to receive your blood sample results, contact us now so we can develop a strategic defence on your behalf.

Incorrect derivate used to store the sample

Similar to our continuity defence, we also employ the use of questioning the prosecution to prove that the correct derivative was used to store the sample, which in many cases we've found out they cannot. Drugs such as cocaine break down into metabolites such as benzoylecgonine, which, if not stored with the correct derivative, can break down further and break the threshold of the legal limit even if you were nowhere close to the limit at the time of driving.

Medical Use and Prescription Drugs

If you have been caught drug driving under the influence of any medical or prescription drugs, contact us now so we can put forward a defence of medical use on your behalf. If the substance is not covered in Section 5(1) of the Misuse of Drugs Act 1971 and was taken in accordance with instructions from a certified medical professional, then you are left with an absolute defence.

Insufficient certification of reference materials for quality control

The analysers in the police laboratories employ certified reference materials to guarantee that measurement techniques and forensic instruments are calibrated correctly to assure quality control.

Drink Driving while giving a breath sample is objective because the equipment gives a real-time result based on the sample given, but in blood cases, toxicologists and forensic lab analysts offer a judgement on whether the substance identified was more than the allowed limit established. Because the judgement cannot be proved beyond a reasonable doubt, it is more susceptible to doubt about how the final decision was arrived at.

A calibrant, which is a sample of a known precise concentration that is used in comparison with the motorist's sample to show whether it was above the limit, must be used to measure the concentration of a drug in a blood sample. Now, there are two key explanations for why this type of study appears to be unreliable:

Unreliable calibrators 

The UKAS, which is the primary organisation offering accreditation in regards to calibrants and reference materials, permits the police to declare their compliance without having to go through any formalities, which means that the burden of proof rests entirely with the police themselves rather than with actual testing or checks. Regarding the analysis of reference compliance.

It is crucial that materials meet the standards established by the UKAS because, otherwise, analysis is useless. Due to inadequate financing, the police use cheaper reference materials, which have lesser validity and render testing ineffective as a cost-saving measure.

Deterioration of the sources used

This defence now refutes the assertions of the CPS by pointing out that the police reuse reference materials even after they have degraded in order to cut expenses. Due to the labs' lack of funds, we have discovered over the years of working with these cases that reference materials are frequently reused.

Higher results for samples are the result of degrading calibrants. Despite the need for the materials to be calibrated in compliance with the rules, the sample is invalid because there is no law against the reuse of the materials. As a defence, we typically request from the prosecution a certificate of analysis outlining the validity and expiration dates of the reference materials employed.

Drug-driving solicitors

At Parnell and Peel, we have been dealing with drug driving offences for over two decades and have faced every situation possible over the course of these years. We have developed and identified multiple loopholes and defences in order to help you keep your driving licence.