Drug Driving Sentencing Guidelines | DG10

Drug Driving Sentencing Guidelines

The Crime and Courts Act 2013 inserted a new section 5A into the Road Traffic Act 1988 (RTA), which makes it an offence to drive, attempt to drive, or be in charge of a motor vehicle with a concentration of a specified controlled drug in the body above the specified limit. The offence came into force on 2 March 2015 and sets legal limits for 17 drugs. 

There are a number of different defences that apply to a drug driving charge. It doesn't matter how far over the legal limit you are, or what drug has been detected, you can still avoid a conviction. Interestingly, there are no sentencing guidelines for drug driving! Instead, the magistrates will consider the circumstances of the offence and any aggravating/mitigating features. It is wrong to rely on the drink driving sentencing guidelines. 

M.A.J Law offer free initial advice to anyone charged with drink driving. We can explain your options in detail from the outset.

You may know by now that drug driving carries a mandatory driving disqualification. This means that you will be banned if you are convicted of the offence.

Where a drug driving offence has been committed and there are no factors that increase seriousness the Court should consider a starting point of a Band C fine, and a disqualification in the region of 12–22 months. Where there are one or more factors that increase seriousness, the court should impose a community penalty. The Court should also consider imposing a disqualification in the region of 23–28 months. The custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one or more aggravating factors. The Court should also consider imposing a disqualification in the region of 29–36 months.

Factors that increase seriousness

• Evidence of another specified drug or of alcohol in the body
• Evidence of an unacceptable standard of driving
• Driving (or in charge of) an LGV, HGV or PSV
• Driving (or in charge of) a vehicle driven for hire or reward

Aggravating factors

• Previous convictions having regard to

a) the nature of the offence to which the conviction relates and its relevance to the current offence; and

b) the time that has elapsed since the conviction

• Location e.g. near school, residential area etc...
• Carrying passengers
• High level of traffic or pedestrians in the vicinity
• Poor road or weather conditions

The only way to avoid a driving disqualification despite being convicted is by using a special reason. A special reason will give the magistrates the discretion not to ban you. A special reason can also help you avoid community service or prison. 

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Drug driving first offence punishment

If you have been charged with drug driving for the first time, it's very important to consider your options and seek specialist legal advice. No doubt you're extremely worried about the prospect of going to court and the consequences of a drug driving conviction. If you're in this situation for the first time, here's what you need to know;

• Drug driving carries a mandatory minimum 12 month driving disqualification
• The court will also impose a financial penalty (in the region of 1.5x your net weekly income)
• The court has no power to reduce the driving ban below 12 months
• Mitigation (i.e. a sob story) is largely ineffective 
• You will receive a criminal record if you plead guilty 
• You may be able to avoid a conviction by defending the allegation, even if you're over the limit  

Drug Driving Hardship 

Bad news - there is no such thing as hardship in a drug driving case. Everyone convicted of a criminal offence in the Magistrates' Court has the right to speak. You can tell the court about your personal circumstances and the importance of your licence. Perhaps you can't work without it. Unfortunately, this will not affect the ban. To read more about mitigation in the Magistrates' Court, click here. 

Unusually, your personal circumstances may actually help us win the case instead. If we challenge the allegation and plead not guilty the CPS are forced to provide full disclosure (including the SFR2 documents). This is an expensive and time-consuming process for the CPS, and more so in the current climate. If, as expected, the CPS fail to comply with its disclosure duties then this will weaken its case. We can then write to the CPS acknowledging its failings and invite them to discontinue the case. We can also set out your personal circumstances and explain, for example, that you need your vehicle for work, family etc... If the CPS discontinue the case, they will send us a notice of discontinuance. 

Drug driving second offence punishment

If you've been convicted of drink or drug driving in the past, please seek legal advice immediately. The chance of a custodial sentence increases with every previous conviction you have. By law, the minimum driving disqualification the court can impose is three years (assuming your previous conviction falls within the last 10 years). You're also more likely to receive community penalties, like unpaid work or a curfew (house arrest). 

Remember that you are entitled to plead not guilty and defend your drug driving case. To learn more about how we regularly win drug driving cases, call us for free on 01514228020. 

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Failing to Provide Samples for a Drug Driving Test

Failing to provide is not the same as drug driving. Under Section 7 of the Road Traffic Act 1988 a police constable can require a person to provide a sample of blood for laboratory analysis where they suspect that a drug driving offence has been committed. If that person refuses without reasonable excuse to provide a sample, they could be charged with failing to provide. This is an offence contrary to Section 7(6) RTA 1988 and carries a mandatory driving disqualification. In more serious cases, you can go to prison. It is not necessary for the police to prove that you were, in fact, impaired by drugs. They only have to prove that they had 'reasonable belief' that you were. 

To read more about the defence of reasonable excuse, click here. 

For more information about how to win your failing to provide case, take a look at our latest blog - Failing to provide a specimen

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What happens in court for drug driving

This largely depends upon whether you have a solicitor representing you. We would always recommend a specialist solicitor because of how technical these cases can become. A 'general crime' solicitor might do a reasonably good job if you're pleading guilty. But wouldn't you like to know if you had a defence?

We would always advise having a regulated and qualified person with you in court and here's why;

1. Options. A solicitor will be able to obtain the initial evidence and advise you on your options. This might include pleading guilty, not guilty or a basis of plea. If the evidence is incorrect, your solicitor may be able to force the CPS to drop the case. 
2. Defences. We spend a lot of time defending drink and drug driving cases. When our clients first make contact with us, they assume they'll have to plead guilty. We are able to explain what defences apply and how likely they are to succeed. Take a look at the best drink driving defences of 2021. 
3. Mitigation. If you do plead guilty you will have the opportunity to raise 'mitigation'. LexisNexis defines mitigation as 'submissions made by the defendant or their representative as part of the sentencing process, presenting the information or evidence which they rely on to mitigate their role or involvement in the offence or their personal circumstances so that the judge can take this into account in sentencing'. Most people believe that mitigation is best presented by an advocate than a defendant. This is because it can come across as a 'sob story' if told by a defendant. In addition, whilst presenting mitigation it's important to understand the sentencing guidance. This way, your advocate can 'shape' your mitigation to reduce the penalty.
4. Pressure. Do you know what to look for? You are always entitled to see some evidence on or before your first court hearing. The kind of evidence provided in drug driving cases is highly technical. It's made up of procedural forms and documents. If you attend court alone, you may not pick up on the mistakes with the paperwork. Solicitors are trained to identify defences quickly and use these to put pressure on the CPS. Many of our cases are dropped on or before the first hearing. 
5. The 'groundwork'. If you do plead not guilty, the court will want to know the reasons why. A barrister a solicitor knows how to clearly present the defence issues and arguments to the court in way which the court will understand.

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FAQ - Sentencing Guidelines 

1. Can I pay a higher fine to avoid a ban?
   No. The fine is means tested and depends upon your income. It is usually around 100-150% of your net-weekly income. If you plead guilty at the first opportunity you would receive maximum credit on the fine. Maximum credit is one-third. Credit does not apply to the length of the disqualification.
   

2. I'm a carer for a family member. Will the court let me keep my licence?
   No. There are no provisions allowing a convicted drug driver to keep hold of their licence as a carer. Drug driving has far reaching consequences and will no doubt affect the people close to you. The court cannot take this into account when sentencing.

3. My friend got a 6 month ban for the same offence. Can I get a 6 month ban?
   No one can receive a 6 month ban for drug driving. The only exception is where the court finds special reasons. 

4. Will I go to prison?
   Going to prison for drug driving is unlikely. Only in the most serious circumstances will a person receive a custodial sentence for drink driving. The odds are greater if a person has a relevant previous conviction or if there were serious aggravating factors. 

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How to get off a drug driving charge

Getting charges dropped before your blood results 

Defend the charge

Under Article 6 of the European Convention on Human Rights everyone has the right to a fair trial. Drug driving cases take place in the Magistrates' Court. You can learn the difference between the criminal courts using the GOV.UK website. The prosecution process generally begins with the police making an arrest. Evidence is then gathered by the police to establish what actually happened and who was involved. In a drug driving case, evidence might include;

1. A blood reading
2. Witness statements
3. An MGDDB document

Once the appropriate evidence has been gathered, the police will decide whether it is sufficient to charge the suspect. In order to charge, the police must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the suspect. Depending on the type and seriousness of the offence committed, this decision is made by the police or the Crown Prosecution Service (CPS). If a person is charged with drink driving, they are usually released and bailed to attend the Magistrates' Court. 

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Thinking of pleading guilty?

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.

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