Drug driving remains not punishable if there is no altered state

Awaiting the Constitutional Court's ruling on the questions of constitutionality raised by the judges of Pordenone, Macerata and Siena, it is the gip of Parma, with an ordinance of 26 September last, to reignite the debate on the reform of Article 187 of the Highway Code. This rule now punishes those who drive 'after having taken drugs or psychotropic substances', without any reference to the concomitant requirement of a 'state of psycho-physical alteration'.

The judge rejected the public prosecutor's request for a criminal conviction of a driver who tested positive for cannabinoids, noting that a proof of the driver's altered state at the time of driving was missing.

The pronouncement is in the wake of the polemics that arose following the reform of the Highway Code, which began with Law No. 177 of 25 November 2024. On drugs, the reform seemed to aim to punish even those who, despite having taken a substance in the past, get behind the wheel in a perfectly lucid condition.

Precisely for this reason, the judges of the Courts of Pordenone, Macerata and Siena raised questions of constitutional legitimacy of the new Article 187, pointing out that the elimination of the requirement of the 'state of psycho-physical alteration' from the conduct sanctioned as criminally relevant violates the principles of offensiveness, proportionality and taxability.

Instead, the Parma Magistrate's Court chooses an interpretative path, attempting to 'save' the rule through a constitutionally compliant reading. In particular, it recalls paragraph 2-bis of the same Article 187, which allows 'second level' checks (analyses that go beyond the use of precursors) only when there is 'reasonable cause to believe that the driver is under the influence' of drugs or psychotropic substances. A detail that, according to the Emilian judge, shows how the legislator did not want to delete the requirement of the altering effect altogether.