In March 2015, section 5A of the Road Traffic Act 1988 was implemented into the law in England and Wales. The legislation introduced legal limits for controlled drugs. The legal limits introduced are as follows:
| Illegal drugs | Specified legal limit |
| benzoylcgonine (cocaine breakdown product) | 50 micrograms per 1 litre of blood |
| cocaine | 10 micrograms per 1 litre of blood |
| delta-9-tetrahydrocannabinol (cannabis) | 2 micrograms per 1 litre of blood |
| ketamine | 20 micrograms per 1 litre of blood |
| methylamphetamine | 10 micrograms per 1 litre of blood |
| lysergic acid diethylamide | 1 microgram per 1 litre of blood |
| Methylenedioxymethamphetamine (MDMA) | 10 micrograms per 1 litre of blood |
| 6-monoacetylmorphine (heroin) | 5 micrograms per 1 litre |
How do I defend a drug driving case?
A drug driving conviction carries a mandatory 12-month driving disqualification. If a person has a relevant previous conviction for either drink driving, drug driving or failing to provide a specimen in the previous 10 years, the court have no other option but to impose a mandatory 3 year driving ban. This can come as a concern to most people who are faced with a drug driving charge. A driving ban and a criminal record involving drugs can have a drastic impact on a persons day-to-day life, work and livelihood.
One of the most common defences available to a drug driving charge is post-driving consumption. Post driving consumption is a complete defence to an allegation of drug driving. If the court accept that you consumed drugs after driving a vehicle, and this was the reason that you were over the legal limit, you would be found not-guilty of drug driving.
When would the defence apply?
This defence may arise when someone has a controlled substance (cannabis, cocaine, ketamine) in the vehicle whilst driving. Someone might realise that these drugs are illegal to possess. You cannot possess a classified drug in the United Kingdom as it is a criminal offence.
Post-driving consumption commonly arises in circumstances where a suspect will panic after being pulled over by the police. They may decide that they want to avoid a drug possession charge and will attempt to conceal the drug by taking, eating or swallowing the drugs. They might have a previous conviction or caution for possession and might think it could be more serious a second time around. The police may not see a person consuming any drug within the vehicle. The police may never become aware that drugs were consumed after driving. However, this does not prevent someone from raising this as a complete defence after the incident has occurred.
Expert evidence
An effective way of arguing post-driving consumption at court is with the use of expert evidence. Our firm works very closely with senior toxicologists who regularly produce reports for us in post-driving consumption cases. An expert can be instructed to prepare a report on post driving consumption. The expert would make a calculation based on the amount of drug consumed, the timings, and someone's height, weight and age. If the report concludes that any level of drug in the blood is present as a result of post driving consumption (drugs consumed after driving), you have a strong argument to use in court. Our independent forensic expert could also attend court to confirm their analysis.
The burden falls on the defendant (the accused) to prove on the balance of probabilities that they consumed drugs after driving. If we have an expert report and a good, credible explanation as to why you consumed the drugs, the court would likely find you not guilty of drug driving.
Drugs consumed after driving are going to adjust the level which is found during the blood sample analysis.
In our recent YouTube video below, our senior solicitor Conor Johnstone explains how the defence of post-driving consumption can apply to a drug driving offence.
Case Study
You can view our recent case study by clicking here. In this particular case, our client raised post-driving consumption as a defence to a drug driving allegation. With use of expert evidence, we were able to convince the court the find in favour of our client.
