Section 5A
Section 5A of the Road Traffic Act 1988 creates the offence of a person driving or attempting to drive or being in charge of a motor vehicle on a road or public place when the proportion of the specified drug in their blood or urine exceedes the specified limit for that drug
5A(1) Application of the section
This section applies where a person ('D') -
(a) drives or attempts to drive a motor vehicle on a road or other public place, or
(b) is in charge of a motor vehicle on a road or other public place, and there is in D's body a specified controlled drug.
5A(2) Offence of exceeding the specified limit
D is guilty of an offence if the proportion of the drug in D's blood or urine exceeds the specified limit for that drug.
5A(3) Medical defence
It is a defence for a person ('D') charged with an offence under this section to show that -
(a) the specified controlled drug had been prescribed or supplied to D for medical or dental purposes,
(b) D took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied, and with any accompanying instructions (so far as consistent with any such directions) given by the manufacturer or distributor of the drug, and
(c) D's possession of the drug immediately before taking it was not unlawful under section 5(1) of the Misuse of Drugs Act 1971 (restriction of possession of controlled drugs) because of an exemption in regulations made under section 7 of that Act (authorisation of activities otherwise unlawful under foregoing provisions).
5A(4) Limitations to the medical defence
The defence in subsection (3) is not available if D's actions were -
(a) contrary to any advice, given by the person by whom the drug was prescribed or supplied, about the amount of time that should elapse between taking the drug and driving a motor vehicle, or
(b) contrary to any accompanying instructions about that matter (so far as consistent with any such advice) given by the manufacturer or distributor of the drug.
5A(5) Burden of proof for the medical defence
If evidence is adduced that is sufficient to raise an issue with respect to the defence in subsection (3), the court must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
5A(6) Defence for being in charge of a vehicle while over the specified limit
It is a defence for a person ('D') charged with an offence by virtue of subsection (1)(b) to prove that at the time D is alleged to have committed the offence, the circumstances were such that there was no likelihood of D driving the vehicle whilst the proportion of the specified controlled drug in D's blood or urine remained likely to exceed the specified limit for that drug.
5A(7) Determining likelihood of driving
The court may, in determining whether there was such a likelihood, disregard any injury to D and any damage to the vehicle.
5A(8) Meaning of "specified"
In this section, and in sections 3A, 6C(1), 6D, and 10, "specified" means specified in regulations made -
(a) by the Secretary of State, in relation to driving or attempting to drive, or being in charge of a vehicle, in England and Wales;
(b) by the Scottish Ministers, in relation to driving or attempting to drive, or being in charge of a vehicle, in Scotland.
5A(9) Zero tolerance
A limit specified under subsection (2) may be zero.
Notes
Specified controlled drugs
Regulation 2 of the Drug Driving (Specified Limits) (England and Wales) Regulations 2014 specifies the controlled drugs and the limit in blood for the purpose of this offence. No specified limits have been set for the proportion of drugs in urine, as such, the section 5A offence is only available where the drugs present exceed the prescribed limit in blood.
Cannabis
Note that 'Cannabis' is not one of the specified controlled drugs. 'Cannabis' is a generic name for a plant and products produced from it and cannot be measured. However, the active ingredient that makes a person likely to be unfit to drive, that can be measured, is delta-9-tetrahydrocannibinol (sometimes known as THC). It is this that has been specified in the Regulations.
Impairment
There is no requirement to provide proof of impairment for an offence under this section.
Defence
Section 5A(3) provides for a defence if a specified controlled drug is prescribed or supplied in accordance with the Misuse of Drugs Act 1971 and taken in accordance with medical advice. The offence in section 4 of the 1988 Act would continue to be used to deal with those whose driving is impaired by specified controlled drugs taken in such circumstances.
Section 4
Should also continue to be used to deal with those whose driving is impaired by drugs which are not specified for the purposes of the offence (including other prescribed drugs and 'legal highs').
More than one drug
Where more than one drug is identified as exceeding the specified limit for a driver, each drug identified as being over the specified limit MUST be charged as a separate offence.
Section 5A(1)(a)
Summary: Maximum 51 weeks imprisonment and/or a fine
Section 5(1)(b)
Summary: Maximum 51 weeks imprisonment and/or a fine not exceeding £2,500
Section 5A(1)(a) only
Mandatory disqualification from driving
Section 5A(1)(b) only
Disqualification from driving can be given at discretion
Section 5A(1)(a)
Licence endorsed with three to eleven penalty points
Section 5(1)(b)
Licence endorsed with ten penalty points
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