House of Commons - Drink and drug driving law

Drink and drug driving law - Transport Committee Contents

3 Drug driving law

55. The current statutory provisions concerning drug driving are contained in sections 4 to 11 of the Road Traffic Act 1988. The principal offence relevant to drug driving mirrors that for drink driving, and can be summarised as driving a vehicle "whilst unfit to drive through drugs". This offence can relate to impairment due to both legal and illegal drugs.

56. Although the drug driving offence is similar to that for alcohol, the context of each crime is different because of the illegality of possessing and supplying controlled drugs. The drug driving offence in Great Britain is based on proof of impairment but some other countries have a more uncompromising legal regime for drug driving whereby it is an automatic offence for somebody to drive a vehicle with a quantity of a listed illegal drug in their bloodstream, regardless of impairment. We examine this issue in more detail later in this chapter (paragraphs 86-99).

57. Drug driving is also a much more complex issue than drink driving, partly because there are numerous substances that have the potential to impair driving abilities, and the number of impairing drugs is ever increasing. Detecting and measuring these substances cannot be done using breath samples but require more intrusive methods to gather samples of bodily fluids such as blood, urine or saliva. In addition, whereas alcohol use is common among most segments of the driving age population, different types of drugs tend to be used by sub-groups within the population.

58. Any centrally-acting drug has the potential negatively to affect driving skill or interfere with the ability to operate a vehicle safely. Depressant drugs, including medicines such as benzodiazepines, can cause slowed response time, slower neural processing, slower recall, greater error rates in complex tasks, balance and orientation changes, lowered alertness and sedation, and can be related to impairment. Hallucinogens, and drugs with sedation as their main effect or side effect, have an obvious adverse effect on overall driving performance. Stimulants, such as amphetamines, methamphetamine and cocaine, can affect critical judgement, increase impulsiveness and error rate, and interrupt normal sleep patterns.[68]

The scale of the problem

EVIDENCE AND OPINIONS

59. Driver impairment due to drugs (both illicit and medicinal) was listed as a contributory factor in 56 fatal road accidents in Great Britain in 2008 (3% of all fatal road accidents that year), 280 serious injuries and 745 slight injuries.It was cited as a contributory factor by police in 0.5% of all reported road accidents that year (compared to 6% for alcohol).[69] In 2008 there were 253 drugs driving proceedings in the courts in England and Wales and 168 findings of guilt.[70] This compares with over 73,000 drink-drive proceedings, and almost 70,000 guilty verdicts that year.[71]

60. The North Review found that it was difficult to determine definitively the scale of drug driving in Great Britain although the official figures were most likely to be under-estimates of the true scale of the problem. The evidence in relation to drug driving was "poor", partly because of the illegality of the possession and supply of controlled drugs in society and the ethical problems associated with obtaining samples. Inadequate recognition of drug driving as a problem, minimal screening of fatalities for drugs by coroners, and the dominant role that alcohol plays in assessment of vehicle accidents also contributed to a lack of recent data from Great Britain on the impact of drug driving on casualty rates.[72]

61. The North Review argued, however, that it was "reasonable to assume" that there was a "significant" drug driving problem in Great Britain, which was likely to be much more widespread than suggested by the 168 drug driving convictions in England and Wales in 2008.[73] North based this assumption on three types of available evidence. First, the prevalence of illicit drug use amongst the general population is high. The most recent British Crime Survey found that one in ten 16 to 59 year olds used illicit drugs: cannabis was the most common substance, although the use of Class A drugs and tranquilisers was found to have increased considerably over the past 15 years.[74]

62. Second, the small number of studies on drug driving in Great Britain suggest it is a fairly common activity. Tunbridge et al conducted the most recent study of drug use among road accident fatalities in 2001,[75] following up on a similar study in 1989.[76] This found that illicit drugs were present in 18% of road accident victims (both driver and non-driver) in 2000, a six-fold increase from 1989. Cannabis was by far the most prevalent drug detected in fatalities.[77] A 2006 survey of drivers in Scotland aged between 17 and 39 found that 6% had claimed to have driven under the influence of illicit drugs and 3.5% in the last year. Researchers suspected that there was likely to be under-reporting of this finding, which raised estimates to 11% and 6% respectively.[78] A 2005 study in Glasgow that involved random roadside drug testing of over 1,300 drivers not involved in accidents found that almost 11% of drivers were drug users, with the most common drugs detected being ecstasy (5% of cases) and cannabis (3%).[79]

63. Third, international research indicates that drug driving is common in several other countries. North considered this to be informative, given the similarity in the prevalence of drug use amongst the general population in Great Britain and several other developed countries, particularly in Europe, and in the absence of up to date British research.[80] A recent review of international evidence concluded that drugs other than alcohol were "not uncommon" among drivers involved in serious road crashes, with most studies reporting the incidence of drugs amongst drivers injured or killed in motor vehicle crashes to be in the range of 14% to 17%, with cannabis the most commonly found substance followed by benzodiazepines. Roadside surveys of night-time drivers in North America determined that psychoactive drugs were found in 10% to 16% of drivers, in excess of the proportion of drivers who had been drinking.[81]

64. North argued that greater efforts were required to improve the evidence base about drug driving. He noted that the UK had not participated actively in recent international research programmes on drug driving. The DRUID study (Driving under the Influence of Drugs, Alcohol and Medicines), due to report in 2012, is an extensive EU project aimed to gain new insights into the degree of impairment caused by psychoactive drugs and their actual impact on road safety. It involves the participation of 19 European countries, including most of those in western Europe. The Organisation for Economic Co-operation and Development (OECD) conducted a recent review of the role and impact of drugs in accident risk. This involved 12 countries, including the United States, France, Germany and Australia. The UK participated actively in neither study.

65. Witnesses criticised the UK's lack of involvement with international research programmes, such as DRIUD and the OECD review.[82] Giving evidence, Sir Peter North expressed disappointment that international programmes had "not been given priority" by successive governments: he believed the UK should take part in DRUID because the project was "getting input of the experience of a whole range of European states and the UK is outside it". North believed, based on anecdotal evidence, that the UK's hesitancy was partly driven by human rights concerns because the evidence-gathering included random stopping of vehicles and asking people voluntarily to take drugs tests (but not penalising them if found positive). He was not convinced by this argument:

"[...] that is a problem that does not seem to have affected other states which are parties to the European Convention on Human Rights. It does not seem to have taken account of the fact we are trying to stop being killed on the roads, and that is a pretty powerful human right".[83]

66. The Department for Transport gave two main reasons to explain the previous Administration's decisions not to participate fully in the DRUID and the OECD projects. First, limited research resources (funding and staff) had restricted the Department's contribution to both projects, although the Department had responded "fully" to requests about available UK data. The second problem, in relation to DRUID, was the "likely implications of any UK sample due to difficulties we would face in replicating methodologies used by other member countries". Previous experience had shown that it was "not possible to get ethical approval to collect unbiased samples for non-fatally injured drivers in the UK".[84]

CONCLUSIONS

67. The state of knowledge about drug driving in Great Britain is far behind drink driving. There is much anecdotal evidence but very little hard evidence, which makes it impossible to determine the exact scale of drug driving in Great Britain. The most recent study of incidence of drugs in road accident victims—albeit conducted almost a decade ago—showed the presence of illegal drugs in almost one in five road fatalities. Drug driving is prevalent in several other developed countries that have similar high levels of illicit drug use in the general population as Great Britain. We believe there is good reason to assume that people impaired by drugs drive regularly on our roads.

68. But police enforcement and public awareness of drug driving still pales in comparison to the situation with drink driving (we discuss enforcement in more detail in paragraphs 72 to 85). Cultural norms about the two are also different and the perception remains that drug driving is not as dangerous as drink driving. Given the potential impairing effects of illicit drugs and the fact that somebody in charge of a motor vehicle whilst impaired on drugs poses a significant risk to others, it is unacceptable that our progress in dealing with drug driving, and our attitudes towards the problem, have changed so little in the past few decades.

69. Drug driving is as important an issue as drink driving, given the risks involved to other road users, the relative lack of public awareness and the current lack of adequate police enforcement. The Government should aim to improve the detection of drug driving so that it is as important a road safety priority as combating drink driving. We recommend that the Government develop a five-year strategy for tackling drug driving.

70. Improving public awareness about the likelihood of being caught by the police is essential in order to deter people from driving under the influence of drugs. A high-profile drug driving advertising and information campaign should be central to a five-year strategy. This should highlight the consequences of being caught and convicted for this crime. The campaign should also inform the public about the significant safety risks that a driver impaired on drugs poses to themself and others.

71. Given our limited evidence base, the results of international drug driving programmes, such as DRUID and the OECD review, provide valuable information to assist countries develop public policy and enforcement and prevention programmes. The UK's minimal involvement in these programmes may only add to the impression that drug driving is not a road safety priority, especially when compared to other countries. This is unfortunate considering the potential benefits that can be gained from pooling resources and expertise amongst countries with similar high levels of illicit drug use amongst the general population.

Drug-testing devices

72. Police officers currently lack the ability to test suspected drug drivers for drugs, either at the roadside or the police station. The Railways and Transport Safety Act 2003 permitted police officers to use a "type-approved" device to conduct a preliminary drug test to indicate whether a person has a drug in their body, but no device has yet been type-approved by the Secretary of State.

73. The current process for detecting and deterring drug driving is thus as follows:

A police officer suspects that the person may be under the influence of a drug, has committed a traffic offence or has been involved in an accident. He or she may administer a breathalyser test to test for alcohol and, whether or not that is positive, a FIT test (physical balance exercises and a pupillary examination).
Observations and inferences made from the person's performance of the FIT test or, where the FIT test was not or could not be administered, from the suspect's general demeanour, driving or other relevant factors may lead the officer to conclude that the impairment offence has been committed.
As a result, the person is arrested and taken to a police station. A forensic physician is called out and asked to examine the suspect to make a judgement about whether the person has 'a condition which might be due to a drug'.[85]
If the answer is affirmative, the police officer will require the person to provide a specimen of blood or urine to be tested for drugs. This is sent to a laboratory for analysis.
Where the analysis shows that a drug was present, the person may be charged with driving whilst unfit due to a drug, provided there is sufficient evidence of impairment at the time of driving.

74. The Government has made efforts in recent years to develop portable preliminary drug screening equipment which can be used by police officers at the roadside.[86] Roadside devices are required to cope with a wide range of storage and user temperatures, must be rugged and robust, small and portable, weather resistant and easy to operate. Despite these efforts, a roadside device has not been type-approved by the Home Office. The North Review recommended that the Government focus its efforts in the short term on type approval of more robust and reliable devices for preliminary drug screening in the more controlled environment of a police station. The Government has since announced a commitment to have screening devices for a range of substances installed in every police station by 2012.

EVIDENCE AND OPINIONS

75. Witnesses said that the fact the police could not screen a suspected drug driver for drugs—either at the roadside or the police station—contributed to the low level of drug driving proceedings and successful prosecutions in this country.[87] Commercially available roadside saliva screening devices are used widely for enforcement in other countries, including Germany, Italy, Australia, Switzerland, Finland, Poland, Iceland, Czech Republic and Luxembourg. Dtec International, a drug testing product company, said that Germany, a country with a very similar population to the UK where the police used drug screening devices, successfully prosecuted 34,500 drug drivers in 2009.[88] Great Britain's 168 drug driving guilty verdicts in 2008 compares very baldly.

76. The North Review found that the current process for detecting and deterring drug driving (described in paragraph 73) contributed to the low level of successful prosecutions and proceedings.In particular, the requirement for all suspected drivers to be assessed by a forensic physician delayed the process in two respects—the delay in getting the doctor to the station and the time spent carrying out the examination—and thus increased the chance that rapidly metabolised illicit drugs might disappear from the detainee's body. Police representatives argued that these factors were a barrier to the prosecution of those drug driving suspects who reached the station but also acted as a disincentive to take suspects back to the station in the first place.[89] Drug screening devices, North argued, would remove the requirement for all suspected drug drivers to be assessed by a forensic physician.[90]

77. Some witnesses argued for a drug screening device to be type-approved as soon as possible. Some criticised the lack of progress made in approving a device since the legislation that provided for it came into force as far back as 2003. The Home Office's conditions for type-approval in Great Britain were said to be too stringent.[91] We were told that commercially available saliva screening devices used in other countries were of sufficient scientific validity to be accepted for use in Great Britain.[92] Recent evaluations of drug screening devices have highlighted continued improvements in sensitivity and in general performance. Some devices available on the market demonstrate excellent sensitivity for amphetamine/MDMA (between 92% and 100%) and moderate sensitivity for cocaine (67 to 75%).[93]

78. Giving evidence, Sir Peter North said that he approved of the stringent conditions for type-approval because it gave "good protection for the citizen". He also argued that the conditions for type-approval for devices in some other countries, such as Australia, were less stringent than in Great Britain but their penalties for drug driving were much more lenient.[94]

79. The Home Office defended its "rigorous" process for type-approval of police equipment. This had been developed to "overcome the scope our Courts allow offenders to challenge process":

"Road traffic law against drink driving, speeding, and some other offences, has been beset by successful challenges on the basis that something was wrong—or unproven—about the equipment the police used to detect the offence. These challenges are not confined to equipment used for evidential purposes: questions about screening equipment have also derailed cases. [...]

"The answer—first adopted for breath testing equipment—is to provide in law that, if a device the police has used is of a type that has been approved, and has been used properly, its use and results cannot be challenged. [...] The Courts can have confidence in the results the devices produce and in actions based on those results, because the devices have proved to be reliable, consistent, accurate and precise. Without type approval, it is likely that scientific evidence on the device's performance would have to be given separately in every case, with consequent heavy demands on the police, police suppliers and the criminal justice system."

80. Specifications for a preliminary device had to be "stringent" because:

"[...] a device which produces a high rate of false negatives [...] has the virtue that it catches some offenders; but they can be expected to win challenges in our Courts on the grounds that other, equally impaired, drivers are getting off because the testing device is not consistent or reliable. Besides, if a large number of drug users are known to be avoiding getting caught then an approach could lose credibility. Conversely a high number of false positives [...] could lead to legal challenges over false arrests. If a high standard is not set, the type-approval itself could also be subject to judicial review."

International comparisons may not be helpful, the Home Office said, because other countries had different judicial systems to Great Britain, did not offer the same opportunities for judicial review or for challenges to prosecution and did not have a type-approval system like ours.[95]

CONCLUSIONS

81. The police currently lack the ability properly to enforce drug driving legislation. This, we believe, largely explains the low number of successful drug driving prosecutions in this country. More effective police enforcement would not only increase drug driving convictions but also deter people from committing this crime. At the moment, people assume—quite correctly—that they can take drugs and drive a vehicle with little chance of being caught and convicted. Publicity campaigns can only achieve so much if people do not expect to be punished.

82. The best way to improve enforcement is to ensure police officers have the use of devices to screen suspected impaired drivers for drugs. Ideally, police would conduct these tests at the roadside, in a similar way to drink driving tests. We accept, however, that development of suitable portable drug screening technology is confounded by difficulties relating to accuracy and interference from substances in the outdoor environment. Given that the penalties for drug driving in this country are comparatively strong—in our view, rightly so—combined with the potential for legal challenges in the courts, it is important that any drug screening device is robust and reliable.

83. There is a clear desire on the part of the Government and the police to introduce preliminary drug screening devices for use in the police station. We agree that the use of such devices in the station would eliminate the difficulties and disadvantages of environmental interference that the use of screening devices at the roadside present.

84. It is unfortunate that a drug screening device has not been type-approved seven years after police were granted the legal power to use them. However, we welcome the Government's commitment to install drug screening devices in every police station by 2012. We will monitor progress to ensure the Government meets its target so that no further time is lost.

85. Drug screening devices for use at the police station should only be an interim measure. The Government's aim for the medium-term should be to develop and type-approve a drug screening device for use at the roadside, drawing on experience in other parts of the world in developing such devices.

Zero-tolerance or impairment levels?

86. Section 4(1) of the Road Traffic Act 1988 states that it is illegal to drive "while unfit through drink or drugs", also known as the 'impairment offence'. Unlike with drink driving, there is no objective test for impairment, no legal definition of impairment in the Road Traffic Act, and no offence of driving in breach of a prescribed limit.

87. The North Review considered whether a new drug driving offence was necessary. Two main options for an offence were considered. The first was to move to a drink driving style offence where the driver, once tested, has to be shown to have had a level of drugs in their system above a medically agreed limit that would suggest they were unfit to drive. The second option was to adopt a 'zero-tolerance' approach, whereby anyone driving with a quantity of a specific listed drug in their system would be committing an offence.

88. North's preference is to base the future drug driving offence on prescribed impairment levels of categories of certain controlled drugs. He recommends that the Government conduct research to determine the levels of the active and impairing metabolites of eight categories of controlled drugs, including cannabis, amphetamines, opiates and cocaine.[96] Once this research established the impairing levels of these drugs, North recommended that prescribed levels should be set in legislation and a new offence introduced which made it unlawful to drive with any of the listed drugs in the body in excess of the prescribed level.

89. North acknowledges the scientific and medical difficulties of reaching a consensus about the impairment levels for particular drugs. If it proves impossible to reach a consensus on specific levels of deemed impairment, he recommends that the Government consider a 'zero tolerance' offence for the same eight categories of controlled drugs.

EVIDENCE AND OPINIONS

90. Witnesses had mixed views about the most appropriate drug driving offence. Some organisations, such as PACTS and the AA, agreed with North that proving impairment should ideally remain central to the offence.[97] A zero-tolerance approach was criticised because it had the potential to penalise drivers who were not impaired and posed no risk to safety. We were told that it could result in people who had smoked cannabis three weeks earlier being arrested because traces of the drug were still in their system, even though the impairment effects had long worn off.[98] A zero tolerance offence was also said to confuse road safety policy—traditionally based on driver impairment—with wider social (drugs) policy.[99]

91. Others, such as the Royal Society for the Prevention of Accidents and the Association of Chief Police Officers, preferred a zero-tolerance offence whereby driving with a listed controlled drug in the body was an automatic offence.[100] Several other countries enforce zero-tolerance offences for certain illegal drugs, such as France, Sweden and Australia, although some of these also retain a separate impairment offence to include people impaired by other drugs (for example, medicines and 'legal highs'). Some witnesses were sceptical whether it was possible to establish a scientific and medical consensus on impairment levels for certain drugs, as proposed by North. The British Medical Association said it would be difficult to establish such a consensus.[101] Dr Tunbridge believed it was "an impossibility" because the range of tolerance levels in the population was far too great.[102] Zero tolerance, on the other hand, was said to overcome the difficulties associated with proving impairment and deciding on scientifically valid impairment limits from conflicting sources of data.

92. Giving evidence, Sir Peter North accepted this was a difficult issue but reiterated his belief that drug driving should remain a road safety issue with impairment central to the offence. Zero tolerance offences were problematic, he said, because it was not illegal to take drugs (only to possess or supply them) and some drugs, such as cannabis, stayed in the system for weeks even though the impairment effect had worn off. He said:

"[....] you have got to think very hard about whether [a zero tolerance regime] is compatible with road safety provisions which are aimed at impairment. It seems to be sliding into a drug control regime. It might be right to do that, but it is very hard to justify that as protecting the public from impaired drivers".[103]

Sir Peter accepted that it was a challenge to establish a medical consensus on impairment levels for the main categories of controlled drugs. However, he argued that there had initially been "quite tricky science" in establishing impairment levels for alcohol, yet that had been achieved. The EU DRUID research was examining impairment effects of drugs and he was hopeful the results of this research might "shorten timescales significantly".[104]

93. Some witnesses rebutted the criticism made by Sir Peter North and others that a zero-tolerance offence could implicate drivers that had taken drugs days, or weeks, earlier. Dtec International, a drug testing company, said that commercially available drug screening devices could detect the compound in cannabis that caused impairment (known as THC) which was present in the body for only a short time: the devices therefore only detected those likely to still be impaired.[105] Concanteno Ltd, another drug testing company, explained that, in other countries with a zero-tolerance offence, the drug screening devices were set to a "cut-off level" that gave a positive result once a certain quantity of drugs was detected in the system—as opposed to the mere presence of drugs. Although this level could not prove that one was impaired, it could, for instance in the case of somebody testing positive for a particular opiate compound, distinguish between a heroin user and somebody taking codeine for medicinal purposes.[106]

94. Similarly, giving evidence to the North Review, the Forensic Science Service felt that "threshold values" for drugs should be established which precluded false positives, but which provided certainty as to the presence of a drug, which could not be present, for example, through passive inhalation. However, these threshold levels "would not in any way equate to the effects that a drug could produce on a person".[107]

CONCLUSIONS

95. The North Review recommends that the Government actively pursue research to determine levels of active and impairing metabolites of eight categories of controlled drugs, in order to create a new drug drive offence to make it illegal to drive with any of the listed drugs in excess of a prescribed level. This approach would mirror that for drink driving. Based on the available medical evidence, and given that the effects of drugs vary so considerably, we doubt whether it will be possible to establish a medical consensus on impairment levels in the short to medium term, if ever. Given this country's relatively poor record on prosecuting drug drivers, we are concerned that this proposal would further delay effective action to detect and tackle drug driving. We are also extremely uncomfortable with the notion that there could be a "legal" amount of illegal drugs that it would be possible to consume and drive a motor vehicle. This, to us, seems politically unrealistic.

96. Many other countries operate a 'zero-tolerance' offence. We heard concerns that a zero-tolerance approach could implicate people who had consumed drugs days, or even weeks, earlier and were not under the influence of those drugs whilst driving. We accept that it would not be fair to arrest a person driving a vehicle who simply had presence of drugs in their bloodstream from weeks earlier or through passive inhalation. Given the severity of our drug driving penalties, this would not be practical or proportionate legislation. It is clear, however, that some of these fears are misinformed. As with the widely-agreed definition of 'zero-tolerance' for alcohol—20mg of alcohol per 100ml of blood—the term should also not be taken literally in the case of drugs. A zero tolerance drug driving offence would still require a baseline "cut-off" level to minimise the possibility that a positive test is not a false positive. Drug screening devices used by police in other countries indicate the presence of a certain quantity of drugs in the system—which can be used to make a judgement about whether the drug had been taken recently and for what purpose.

97. There is an important distinction to be made between proving a driver (i) has taken a certain quantity of illegal drugs relatively recently at the time of driving or (ii) is impaired by drugs at the time of driving. As we have seen, the latter is fraught with difficulties. Proving impairment due to drugs requires either a scientific consensus on impairment levels—which, as we have said, is a long term ambition at best—or through current methods such as a FIT test. Neither is particularly satisfactory to deter and detect drug drivers. In our view, proof that a driver has a certain quantity of a specified illegal drug (that is known to affect driving abilities) in their body at the time of driving is sufficient to bring somebody through the criminal system on a charge of drug driving—regardless of impairment.

98. On balance we favour the adoption of a "zero-tolerance" offence for illegal drugs which are known to impair driving, which are widely misused, including among drivers, and which represent a substantial part of the drug driving problem. As with alcohol, "zero-tolerance" would not necessarily mean the detection of drugs in the bloodstream. An appropriate quantity would need to be detected in order to rule out, for example, passive inhalation.

99. If a new offence is created, the Government should retain the current impairment offence to cover other drugs that impair driving ability, such as medicines and 'legal highs'.

68 Sir Peter North CBE QC, Report of the Review of Drink and Drug Driving Law, June 2010, pp 139-140 Back

69 Department for Transport, Reported Road Casualties Great Britain 2008, 2009 Back

70 There were 2,599 "drink or drugs" driving proceedings and 1,426 guilty verdicts. Back

71 Sir Peter North CBE QC, Report of the Review of Drink and Drug Driving Law, June 2010, p 151. Source collated from Ministry of Justice, 2008. Back

72 Sir Peter North CBE QC, Report of the Review of Drink and Drug Driving Law, June 2010, p 167 Back

73 Sir Peter North CBE QC, Report of the Review of Drink and Drug Driving Law, June 2010, p 168 Back

74 Home Office, British Crime Survey, 2008-2009, 2010 Back

75 Based on blood and urine samples taken from 1,184 road accident fatalities (both driver and non-driver) between 1996 and 2000. Back

76 JT Everest, RJ Tunbridge and B Widdop, The incidence of drugs in road accident fatalities, TRL Report, 1989 Back

77 RJ Tunbridge, M Keigan and F James, The incidence of drugs and alcohol in road accident fatalities, TRL Report, 2001 Back

78 Scottish Executive Social Research, Illicit drugs and driving, 2006 Back

79 IMMORTAL EU Research Project, The prevalence of drug driving and relative risk estimations: a study conducted in the Netherlands, Norway and United Kingdom, 2005 Back