In November 2018 the law changed to allow medicinal cannabis to be prescribed in certain circumstances by specialist registered Doctors. Initially the uptake of such prescriptions was slow, but as more Doctors have been registered the number of administered prescriptions is increasing, and therefore inevitably the number of people who are driving having taken prescribed medicinal cannabis is also increasing.
This is due to the drug driving limits which were introduced 2015. THC is defined as an illegal drug and the legislation takes a ‘zero tolerance’ approach, meaning that almost any trace of cannabis in the blood would be above the limit which is set at 2ug/L and therefore driving with it in your system would be an offence.
Prescribed drugs on the other hand, such as diazepam, amphetamine or methadone, have much higher limits, so often driving with prescribed drugs in your system would not be illegal.
Cannabis crosses the line between illegal and legal. Cannabis is only legal if it has been prescribed and obtained from a specialist provider. But even though it now can be prescribed, many people who’ve taken it in accordance with their prescription are still above the limit and are still being prosecuted because of the zero tolerance approach.
So in this article we will examine the law.
The law
The starting point is Section 5A Road Traffic Act 1988. This law sets out that it is an offence for any person to drive or attempt to drive a vehicle on road or other public place if the proportion of a specific drug is above the legal limit. The limits can be seen below:
If the police pull over a vehicle or attend the scene of an accident and suspect that the driver is under the influence of drugs, they will require a roadside saliva swab. If that swab is positive for drugs, the driver is taken to the police station for a blood sample to be taken by a healthcare professional.
That blood sample is then sent to the laboratory for analysis, and the defendant is released on bail pending analysis of that sample. If the sample is returned as showing to contain any of the drugs in the table above the limit, the defendant is charged with drug driving and is bailed to attend the local Magistrates Court, where they would have to attend and enter a plea.
On conviction or with a guilty plea, the offence carries a minimum 12-month disqualification with fines/costs. But with aggravating factors the disqualification can range as high as several years, and in many cases can carry a community order (such as a tag/curfew or unpaid work), or in very serious cases a prison sentence.
All the prosecution must prove to bring a charge is that the defendant was driving (or attempting to drive) a vehicle on a road (or other public place) with a drug above the limit. If a defendant has told the police about the prescription and wants the police to investigate, they can absolutely raise it but in many cases the police don’t bother. If the police have enough evidence that someone is above the limit, they will simply charge the driver with drug driving and let them present the defence themselves.
The defence
Under Section 5A(3), it is a defence if the defendant can prove:
- the controlled drug has been prescribed or supplied for medical or dental purposes,
- the drug was taken in accordance with accompanying directions and instructions (from a practitioner or manufacturer), and
- possession of the drug was not unlawful [under Section 5(1) of the Misuse of Drugs Act 1971] immediately before taking it because of an exemption under Section 7 of that Act.
Usually, this defence would be put forward by somebody who was taking an over the counter, prescribed drug, such as diazepam. Such drugs have much higher limits than historical illegal drugs, such as cocaine or cannabis, and usually such charges from the police indicate that somebody has been taking far more quantity of their drug than their prescription would allow.
You can see the difference between the limit for illegal substances and controlled substances from the tables above. Controlled substances have much higher limits than illegal drugs.
Cannabis (or specifically Delta-9-THC), is different. Because that is an illegal drug the limits are incredibly low meaning that even taking it in accordance with a prescription could see a driver being prosecuted.
Putting the defence into practice
If a driver has been prescribed medical cannabis and is still being prosecuted, then the first thing to do is attend the hearing at the Magistrates Court and plead not guilty. This will usually mean the case is adjourned for a few months for a trial. It is highly advisable for any defendant to get a lawyer to help them do this.
Prior to the trial, the defendant will then have to prepare their defence.
The starting point to remember is that the burden is on the defendant to prove the defence on the balance of probabilities. It is not for the prosecution to prove. As above, all the prosecution need to prove is that the defendant was driving on a road whilst above the limit. If they can do that, then the burden switches to the defence to prove the defence on the balance of probabilities.
The defendant therefore must show all three of the points until the court is satisfied.
-
- the controlled drug has been prescribed or supplied for medical or dental purposes. Here a copy of the prescription would need to be provided.
- the drug was taken in accordance with accompanying directions and instructions. This is where the defence is likely to get complex, as we must examine the prescription and any instructions with it and scrutinise that against the facts of the case.
Such prescriptions will prescribe specific amounts. It would therefore be extremely prudent to get an expert toxicologist to compare the prescription against the blood analysis and work out whether the cannabis found in the blood matches the amount the driver was supposed to take. If it matches, that’s a good start. If they don’t match (so if the toxicologist states that the amount in the blood is not indicative of the amount prescribed) then that is going to undermine the defence.
Some prescriptions do not specify an amount to be consumed; it could be prescribed on an “as and when basis” which means that the level of THC in the blood can fluctuate. This is more complicated in terms of a toxicology report and so any defence is likely to depend on the below – levels of impairment.
Second, it is often included in a prescription that somebody ought not to drive if they are feeling the effects of cannabis, and not to drive or operate any heavy machinery until they are not under the influence. This is very much going to come down to evidence. If the police officer is suggesting that the driver’s eyes were glazed, speech was slurred, unsteady on feet, anything like that, the police will be arguing that they were impaired and therefore should not have been driving per the prescription. In most cases, a thorough analysis of CCTV and body worn video will be vital to assess levels of impairment.
Another point to consider is the type of cannabis that is taken. Many Doctors will prescribe THC in specific forms, such as oil or as a liquid to be inhaled through a vape. It must be used as directed, so if for example a driver had run out of their prescription, they cannot ‘borrow’ some extra from a friend.
c. that possession of the drug was not unlawful under the Misuse of Drugs Act. Again, this is going to come down to the prescription, and it may well be worth getting a medical report from the prescribing Doctor to confirm that the cannabis has been lawfully prescribed in set amounts.
Specifically, it is also important to prove here that the driver was only carrying and taking the amount as specified in the prescription, and that they hadn’t been holding or taking any ‘buds’ or illegal cannabis that has been bought from the street.
If the defendant can show all three of the above points, they should be found not guilty, receiving no disqualification or any other sentence.
However, if the defendant takes a case to trial and is found guilty, they will lose all credit in sentence which could result in a longer disqualification, would certainly result in increased fines/ costs, and, if one is being imposed, longer community orders or prison sentences.