Drug Driving in Scotland | Road Traffic Act 1988 Section 5A
Drug Driving In Scotland (Section 5A) : the Key Points
Offence – Driving or attempting to drive with a specified controlled drug above the legal limit.
Law – Section 5A of the Road Traffic Act 1988 sets strict limits for both illegal and prescription drugs.
Penalties – Mandatory disqualification, possible imprisonment, fines, and a criminal record.
Testing Process – Roadside saliva tests and confirmatory blood tests are used to detect drug levels.
Defences – Includes procedural errors, prescription use under medical advice, and challenges to accuracy of results.
Why Legal Advice Matters – Specialist solicitors can examine the evidence and build a defence tailored to your situation.
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Drug Driving Charges
Drug Driving in Scotland is an offence under the Road Traffic Act 1988 section 5A. Since the introduction of section 5A into Scots law and the increasing use of “drug swabs”, prosecutions under the Road Traffic Act section 5A are becoming more and more common. It is an offence to drive on a road or other public place while over the prescribed limit. The penalty for drug driving in Scotland is a mandatory disqualification of at least 12 months. Unlike drink driving, it is not possible to shorten this period by participation in a rehabilitation scheme. Further, because of the Government’s “zero tolerance” approach to drug driving with illegal drugs in the system, even a modest intake of certain controlled drugs can result in a charge many times over the prescribed limit. If you are charged with Drug driving in Scotland, get in touch straight away for a free consultation.
Your Complete guide to Drug Driving In Scotland
Do you want to know more about this subject? Our comprehensive collection of articles and guides break down everything you need to know, including the most recent legal news and developments
Procedures
The first thing that your defence lawyer should have firm grasp of is the procedures that the police and prosecution should be following in a case like this. Failure to adhere to the correct procedures can result in an acquittal. Click the box below to read more on this subject:
The vast majority of prosecutions for drug driving in Scotland will commence by service of a copy complaint. This is different from the usual procedure for drink driving when an accused person will usually be subject to police bail and given a date to attend court in the near future as a condition of their release from custody. The reason for this is that all drug driving allegations under the Road Traffic Act 1988 section 5 require a blood analysis to be carried out. This means that, before you can be prosecuted, your blood requires to be analysed. This analysis is usually carried out by the Scottish Police Authority and can take several months. The stages in the procedure can generally be described as follows:
If the police suspect you of drug driving, you may be subjected to a roadside swab. This test is indicative only and currently can only be used to indicate the presence of cannabis or cocaine. If you fail this test, you can expect to be arrested and taken to a local police station. Even if you pass, you can still be arrested if the police suspect drug use on another basis. The usual reasons given by the police are unexplained erratic driving, glazed eyes or dilated/constricted pupils.
If you are arrested, the police can then require you to provide a blood sample for analysis. You cannot be forced to provide this sample but – if you refuse – you can be prosecuted for this refusal. The police must warn you of the consequences of refusal and must also have your unconditional agreement before your sample is taken. The doctor or practitioner taking your sample must likewise obtain your clear and unconditional agreement. Failure by the authorities to follow these procedures can result in an acquittal. The police should document all steps taken by them in a form called a DD4.
After your sample has been obtained, you should be released from police custody once the police are satisfied you are no longer impaired. Your property will be returned to you and – unless you have refused your right to your own sample – a sample of your blood should be provided to you. If you wish to have your sample analysed, you should refrigerate it as soon as possible.
If your sample is analysed and is found to be positive, the Crown requires to serve case papers upon you within 6 months of the incident. This is done by service of a complaint which also contains a police report outlining the prosecution case and a citation with a date to attend court.
Your first appearance is called your “pleading diet”. At this stage you are required to enter a plea of Guilty or Not Guilty. If you plead Guilty, your case will either be dealt with there and then by way of a disqualification and a fine or – if the offence appears particularly serious or you are a repeat offender – sentence may be delayed for a background report. If you plead Not Guilty, dates will be set for your case called the “intermediate diet” and the “trial diet”.
The intermediate diet is a procedural hearing. By this stage, all of the evidence should have been disclosed to, and scrutinised by, the defence. The Crown will usually seek to lead evidence by means of a “section 16” certificate to establish the accuracy of the blood sample results. If this certificate is unchallenged, the results can still be attacked on the grounds of credibility and reliability. Sometimes a Guilty plea is tendered at this stage. At other times, the case will proceed to the trial, where evidence is led.
Penalties
The mandatory penalties for drug driving range from 12 months to 36 months. If this is your first drink or drugs related driving offence then the minimum driving ban is for 12 months. If you have been previously convicted within the past 10 years of a related offence such as drink driving or failure to provide a specimen, then the minimum penalty is 36 months. There will also be a non-driving related penalty such as a fine, community order or (for the most serious cases) a prison sentence of up to 6 months. It must be stressed that these are the minimum penalties for Drug driving in Scotland. Even if you are minded to plead Guilty, you should still obtain legal advice. A good solicitor can make a significant difference to the penalty. Click the box below for more detailed information on this subject:
Mandatory minimum penalties for drug driving range from 12 months for a first offender to 36 months for a repeat offender.
A repeat offender, as per the Road Traffic (Offenders) Act 1988 section 34, is someone who has committed one of the following offences within 10 years of the current offence:
- Causing death by careless driving while under the influence of drink or drugs
- Driving, or attempting to drive, while unfit through drink or drugs
- Driving, or attempting to drive, over the prescribed limit for alcohol
- Driving, or attempting to drive, over the prescribed limit for drugs
- Failure to provide a sample in circumstances where that offence involves obligatory disqualification
It is clear, therefore, that Parliament equates drug driving with drink driving. However, unlike drink driving, there is no way to reduce the minimum sentence.
Any person convicted of drink driving has the opportunity to persuade the court that he should be allowed to participate in the Drink Drive Rehabilitation Scheme. Unfortunately someone convicted of drug driving is not eligible for this scheme. This is clear when you examine section 34A of the Road Traffic (Offenders) Act 1988. The section specifically states that the scheme is only available for a “relevant drink offence”. Furthermore, when referring to a section 4 offence, which relates to driving while unfit through drink or drugs, the section is at pains to point out that the scheme is only available when the offence is committed by reason of unfitness through drink. The reason why drug-related offences are not included is not altogether clear. It cannot simply be that it is illegal to possess many of the drugs concerned as it is possible to commit a section 5A offence while under the influence of legal drugs.
It is fair to say that the courts are still feeling their way when it comes to sentencing. Relevant factors will include the particular cirucmstances of the offence. Are there, for example, any aggravating features such as poor driving? Also relevant are the particular circumstances of the offender. Does he, for example, have an otherwise untarnished record? The most difficulty arises in terms of the most important factor in respect of drink-driving – the actual reading. The issue here arises from the “zero tolerance” approach. This can mean that a person can be many times in excess of the prescribed limit even when they are not impaired. In one case of ours (which resulted in an acquittal) tests indicated that our client was more than 9 times the limit for the metabolite of cocaine. According to the police, he did not appear impaired. It is hard to imagine that would be the case for someone 9 times the alcohol limit! There appears to be some recognition in the Enlish sentencing guidelines about this difficulty. For drink driving there is a specific statement that “sentences are based on the level of alcohol found from testing” and there are detailed tables of recommendations for how to deal with drink driving offences. In relation to drug-driving, the level of drugs found within the system is specifically excluded by its absence from an “exhaustive” list of factors that deteremine seriousness. Eventually case law will help determine what can be expected in terms of certain levels of drgugs found within the system. As yet, however, there is a large degree of uncertainty which makes the importance of a capbale lawyer all the more prevalent.
Legal limits
The prescribed limits are specified in the Drug Driving (Specified Limits) (Scotland) Regulations 2019. This brought the landscape for drug driving in Scotland into line with England where section 5A has been in force since 2015. The specified limits are as follows:
If a drug is not on this list, then you cannot be prosecuted for drug driving in Scotland under the Road Traffic Act 1988 section 5A. You can still be prosecuted as driving while unfit through drugs but the Crown would then have the additional hurdles of proving (a) that you were impaired and (b) that the cause of your impairment was because of drugs.
It is also clear from the table that 8 of the listed drugs are controlled substances. These are the drugs identified by the Scottish Government as most associated with illegal use. They are benzoylecgonine which is the metabolite for cocaine; cocaine itself; delta–9–tetrahydrocannabinol (the metabolite for cannabis); ketamine; lysergic acid diethylamide (LSD); methylamphetamine; methylenedioxymethaphetamine (MDMA – ecstasy); and 6-monoacetylmorphine (heroin/diamorphine).
Implementing a zero-tolerance approach means that the prescribed levels for these drugs are very low. In relation to cannabis, for example, the UK Government instructed a panel of expert to recommend the new limits on the basis of “zero tolerance”. The panel recommended 5 micrograms. The legal limit is 2! Scottish Government officials later set the same limit with the specific aim of ruling out passive ingestion as a potential defence. In other words the Government knows full well that a positive result could be as a result of passive ingestion and the Government doesn’t care. Nor does the Government care about whether you are impaired or not. It can only be hoped that the courts will care about these things and, in cases where it accepts passive ingestion and no impairment, make findings of special reasons not to disqualify.
The other 8 drugs are prescription drugs and the limits for these are based on the risk of impairment. A statutory defence may be applicable if these drugs were prescribed to you and you are using them in accordance with the prescription.
Defences
There are several ways to defend a charge of Drug driving in Scotland under the Road Traffic Act 1988 section 5A. We discuss these in detail elsewhere but they can be briefly summarised as follows:
- If the drug is a prescription drug, you may be able to avail yourself of a statutory defence so long as you are taking the drug in line with medical guidance;
- The Crown must prove you were driving and, furthermore, that you were driving on a road or other public place. That is not always as easy as it appears;
- In selected cases, a defence of post-incident consumption may apply;
- Failings in police procedure and/or issues arising from consent, or lack thereof, to the provision of the blood sample
- The chain of evidence – in short, your sample will have to pass through several hands before eventually being analysed. It is for the Crown to establish that this “evidential chain” is secure
- Legal and/or technical defences – there may be issues with the admissibility of the blood sample results. Even if not, there may be issues with the reliability of these results.
What to do next
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