The drug driving law changed on 2 March 2015 to make it easier for the police to catch and convict drug drivers under the influence of both illegal and certain legal drugs. Michael Hafen examines the implications of the new legislation for individuals and employers and suggests some steps that employers may consider taking to ensure their employees drive safely.
Recent press reports suggest that a number of people have already been tested and arrested.
The new offence will work alongside the existing offence of driving while impaired through drink and drugs. Police will be able to take saliva tests at the roadside to identify any drugs used. If any of these are positive then the motorist can be taken to a police station for blood or urine testing.
The old offence of being impaired by drugs while driving required the prosecution to show how a driver's ability to drive had been adversely affected by the drugs that had been taken. Now it simply has to be shown that the individual has taken drugs over the prescribed allowance.
The new law also clarifies the position for drivers using medication and sets limits for a number of prescribed drugs that can affect driving.
What drugs are covered?
The new drug driving law sets limits for eight illegal and eight prescription drugs. The limits for the illegal drugs such as ketamin, LSD, cocaine, cannabis and heroine are set to a very low zero tolerance level. In addition, legal limits per litre of blood have been set for eight prescription drugs. Those using them within prescribed amounts will not be prosecuted.
The listed prescription drugs are:-
What to do?
Government guidelines state that medication should only be taken as prescribed and advised by a qualified medical practitioner. Particular attention needs to be given to what effects taking the medication may have on a person's ability to drive. Proof of using the specific legal drug, such as the container or instruction leaflet should be kept in the vehicle in case of being stopped by the police.
The penalties for drug driving are the same as drink driving. A conviction can carry up to a minimum twelve month driving ban, a criminal record, a fine of up to £5,000 or up to six months in prison or both.
It should be remembered that the penalty for causing death by dangerous driving under the influence of drugs is up to 14 years in jail.
Whether the judicial system is ready to implement the new law remains to be seen. There are already concerns as to how the new law can be enforced. Practical problems can and will arise. For example, where an individual innocently combines a prescription drug with another drug purchased over the counter there is a risk that if that individual then drives he/she could fall foul of the new drug driving law.
Effects on an individual
Driving or attempting to drive while over the limit will result in:-
- Loss of licence - an automatic 12-month driving ban.
- A risk of being fined up to £5,000.
- A criminal record - for a minimum of 20 years.
- An offence which stays on the individual's driving licence for 11 years.
- A risk of being imprisoned for up to six months.
Having a criminal record can also seriously impact an individual's life in many other ways, both social and professional including in relation to a current job or future employment prospects, exclusion or expulsion from professional associations, ability to obtain insurance or mortgages and the like.
What should employers be doing?
The Health and Safety at Work etc Act 1974 (HSWA) requires employers to ensure, so far as is reasonably practicable, the health and safety of all employees while at work, including those engaged in "on the road" work activities. Employers have a responsibility to ensure that others are not put at risk by their employees' work related activities, including driving for work purposes.
Employers must conduct suitable risk assessments and implement "reasonably practicable" measures to ensure work-related journeys are safe, staff are fit and competent to drive safely and vehicles are fit for purpose and in a safe condition.
The introduction of the new drug driving law is an ideal opportunity for employers to reassess policies and procedures currently in place and to update them if necessary. If no policy exists then create one.
The organisation's approach to road safety at work (including safe driving and the use of alcohol and drugs) must be clear and communicated to staff so that they understand the approach and expectations. This can be done through a combination of recruitment, training and staff appraisals to ensure employees are aware of:
- The need to plan journeys and to be fit to drive.
- The law on driving while under the influence of alcohol or drugs, including prescription medicines.
- The effect that these, especially if combined with stress or fatigue, can have on a person's ability to drive safely.
- The business' policy and position on this issue, including disciplinary consequences that can arise from a failure to comply.
- The potentially devastating legal, financial and adverse publicity consequences that can arise for both the individual and the business by driving badly in the course of work, including when under the influence of alcohol, drugs and prescription medicines.
- Any help and assistance available to staff to encourage them to come forward if they feel that they may have issues with alcohol or drugs.
- Any training available on how to spot potential problems.
- The requirement for all staff and senior management to report all driving related issues, including speeding or driving while under the influence of alcohol or drugs, to HR. This will enable the business to determine whether driver error played a part in the incident and, if so, to what extent. If there is a pattern, should that individual continue driving?
- Any random drug and alcohol testing policies employed for example in high risk businesses, such as fleet distribution companies. Remember though that such testing requires the consent of the individual concerned unless it forms part of their existing contract of employment.
Progress needs to be periodically reviewed to identify whether further action is needed and, if so, that such action is taken. Road safety awareness needs to be kept alive through discussion at meetings, internal memos, briefings and staff appraisals. Management should lead by example and staff participation and compliance with safe driving policies should be recognised, celebrated and rewarded
Still not convinced?
There is a growing movement to apply health and safety legislation to drive up workplace road standards. This means that there is real scope for the Health and Safety Executive (HSE) to prosecute an employer for the actions of an employee while driving in the course of work.
For example, in September 2014, an employed HGV driver was convicted of dangerous driving after he killed two cyclists in July 2013 having fallen asleep behind the wheel of his lorry. Some 10 weeks later, while on bail, he was involved in another incident of dangerous driving. The court heard evidence that the driver worked very long hours for his employer, working in the maintenance depot by day and driving at night. The lorry driver was sentenced to eight and a half years in prison and banned from driving for 10 years after he pleaded guilty to causing the cyclists' deaths.
His employer, operating a haulage business, has been investigated by the HSE for potential breaches under HSWA. At the time of writing it is not clear what stage those investigations have reached but on the evidence the message is clear that employers must ensure that employees, particularly professional drivers, are effectively managed when driving for work. Failure to do so puts the business at risk of a criminal prosecution for breaches of the HSWA or worse, under the Corporate Manslaughter and Homicide Act 2007.
In addition, the Sentencing Council Guidelines published in November 2014 which if implemented are likely to see an increase in fines for health and safety, corporate manslaughter, food safety and hygiene offences, are particularly relevant.
Specifically, the guidelines set out that "fines should be sufficient to have a real economic impact which will bring home to both management and shareholders the need to comply with the legislation and achieve a safe environment for workers and members of the public". Our earlier review of these proposals can be accessed here.
The proposed guidelines, if enacted, will have a serious impact on business. By law, fines cannot be insured and are intended to be punitive. They will come straight off the bottom line, as will the prosecution costs which on conviction are also normally ordered to be paid by the defendant.