New drug driving legislation came into force on 2 March 2015.  The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 introduce a new offence of driving, attempting to drive or be in charge of a motor vehicle on a road or other public place with amounts of 16 controlled drugs above specified limits in the driver’s blood.

What is changing?

Previous “drug driving” legislation makes it an offence for a person to drive or attempt to drive a vehicle if they are unfit to drive through drugs.  For a successful prosecution, it needs to be proved that the driver’s impairment was caused by the drugs in their system.  There have been no objective standards by which to determine this, which has attracted criticism due to the relatively low number of prosecutions for this offence to date.

This law will remain in force, but the key impact of the new legislation is that if a driver is found to have amounts of one of the specified drugs above the prescribed limits, they can be convicted on that basis, without any evidence of impairment and without there needing to be a link between any impairment and drug use. 

As might be expected, the drugs listed in the legislation include illegal drugs such as cocaine.  However, they also include drugs included in medicines which are either legally prescribed or available over the counter such as lorazepam:

  • Benzoylecgonine
  • Clonazepam
  • Cocaine
  • Delta-9-Tetrahydrocannabinol
  • Diazepam
  • Flunitrazepam
  • Ketamine
  • Lorazepam
  • Lysergic Acid Diethylamide
  • Methadone
  • Methylamphetamine
  • Methylenedioxymethamphetamine
  • 6-Monoacetylmorphine
  • Morphine

What is the potential impact of the new offence?

The Department of Transport  (DfT) estimates that around 19 million prescriptions a year are issued for drugs which are included in the scope of this offence.  This means that drivers are at risk of inadvertently breaking the new law when taking certain commonly used medicines. 

Police forces have been issued with mobile screening devices, and any roadside testing would be followed up by blood and urine tests at a police station.  However, these screening devices can only detect cannabis  and cocaine, and concerns have been raised about their accuracy.

The DfT has reassured drivers that people who use the drugs listed legitimately, following the advice of a healthcare professional will be able to drive without fear of being prosecuted.  There will be a defence for drivers who were prescribed the specific drug for medical or dental purposes and took it as directed in accordance with the instructions (insofar as consistent with the directions from the healthcare professional).  However, this defence will not apply if the driver ignored any advice given when prescribing or in the instructions about the amount of time that should lapse between taking the drug and driving. 

Despite the DfT’s assurances, this has raised concerns about whether the defence would apply in circumstances where a patient is prescribed an off-label or an unlicensed medicine.  Drivers have been advised to keep evidence of any legally prescribed medicines with them to speed up the investigation process should they be stopped, but this will be particularly important for off-label or unlicensed use.  The consequences of getting this wrong can be stark, involving up to six months’ imprisonment, a fine of up to £5,000 and a minimum of 12 months’ disqualification.

What should employers be doing?

According to press reports, almost half of UK drivers are unaware that the new legislation is coming into force.  This means that employers play a key role in helping to ensure that their workforce is up to speed with the coming changes. 

This is particularly important where driving forms an integral part of an employee’s role, but given the number of people who drive to work on a regular basis it is relevant on a wider scale. 

Employers should therefore find that the legislation serves as a useful prompt to revisit existing drug and alcohol policies (and indeed to consider introducing these if not already in place) and look again at what steps they can take to promote awareness of the risks associated with drug and alcohol use and to promote a safe and healthy workplace culture.  This could include consideration of any existing drug testing procedures, identifying any groups or individuals in the workforce who might be particularly affected and considering whether any awareness training should be put in place.