Driving after taking drugs, 'only punishable if it creates a danger'
According to the Constitutional Court, the crackdown on driving under the influence of drugs is not illegitimate as long as it is interpreted to mean that only those who get behind the wheel in a condition that creates a danger to road safety can be punished
The crackdown on driving under the influence of drugs introduced in 2024 by Article 187 of the Road Traffic Act is not unlawful as long as it is interpreted to mean that only those who get behind the wheel, after taking drugs, in a condition that creates a danger to road safety can be punished. This was established by the Constitutional Court. Previously, the rule punished those who drove 'in a state of psycho-physical alteration' after taking drugs. The new wording of Article 187 simply punishes those who drive 'after taking' drugs. The interpretation of the Consulta on the rule arrives today, after the doubts of legitimacy expressed by three judges.
Strict interpretation of the new standard
According to the judges on the merits who addressed the Consulta (whose views were joined by the Union of Italian Criminal Chambers and the Italian Association of Criminal Law Professors, who presented opinions as 'amici curiae'), the new wording would allow anyone who had taken drugs at any time prior to driving to be punished: in hypothesis, even days, weeks or months before. It would therefore produce unreasonable and disproportionate results, incriminating even conduct that is completely inoffensive with respect to road traffic safety; it would not allow the area of punishable conduct to be precisely identified; and it would lead to unreasonable disparities in treatment compared to, inter alia, the regulation of the offence of driving under the influence of alcohol. The Court did not agree with these censures, but emphasised the need for a 'restrictive interpretation of the new rule in accordance with the constitutional principles of proportionality and offensiveness, as well as the very purpose pursued by the legislature'.
What is needed to prove that there is a danger to road traffic
Under this interpretation, it will no longer be necessary to prove that the driver was driving in a state of actual psycho-physical alteration. However, it will be necessary to ascertain the presence in the driver's bodily fluids of quantities of narcotic substances 'which by quality and quantity, in relation to the individual biological matrices in which they are found, are generally suitable, on the basis of current scientific knowledge, to determine in an average user an alteration of the psycho-physical conditions, and consequently of the normal ability to control the vehicle'. In other words - explains a Consulta communiqué - it will no longer be necessary to demonstrate that the drug taken has actually altered the driver's driving ability. But it will still be necessary to ascertain the presence in his bodily fluids of a quantity of the substance that appears capable of altering these capacities in an average user, so as to create a danger to road traffic.
