Highway Code

Drugs can also lead to driving convictions

Type and number of substances that can be investigated are very numerous

by Stefano D'Errico* and Elio Santangelo*

3 April 2024

2' min read

Key points

Substances
Doubts for doctors and patients
The difference with road homicide

2' min read

The amendment to Article 187 of the Highway Code, which is effectively abolishing the need to ascertain the driver's state of psycho-physical alteration, stipulates that the illicit conduct takes place simply 'after taking drugs or psychotropic substances'. On the one hand this is an (apparent) facilitation in the prosecution of such conduct, on the other hand it causes quite a few problems.

The substances

In fact, the types and number of substances that can be investigated are very numerous. And there are both illegal and legally prescribable ones. The latter are used to a not inconsiderable extent among drivers and others (e.g. morphine-based medicines and opiate analgesics, benzodiazepines, barbiturates, cannabis-based medicines of plant origin). Moreover, their detectability in biological fluids (including saliva) may occur even many hours/days after their intake, when the effects experienced by the person may no longer be present.

In the case of those who take psychoactive drugs, this evidence raises several medical-legal (and other) questions that are not easy to answer: from the length of time the drug stays in the body to the consequences of sanctions on labour relations and insurance compensation in the event of a claim.

Doubts for doctors and patients

In particular, there are basically five questions.

1. When will a patient taking a psychoactive drug, having exhausted its effect, be able to drive safely to avoid testing positive and thus incurring the offence?

2. Will the prescribing doctor's role and responsibility towards the patient change with an obligation not only to inform about the possibility of the drug altering driving ability, but also about when, presumably, the drug will be completely eliminated from the body?

3. The patient who drives a vehicle to work and for whom the pharmacological effect can be considered to have worn off before the start of the work shift (but still with detectable potential positivity), what behaviour should he adopt?

4. How will a patient who is taking a psychoactive drug and has been assessed as fit to drive by the local medical committee be judged in the event of a positive test result?

5. Will the scenario of insurance forms (such as motor third party liability) change? And what means of protection can/should citizens exercise with regard to possible insurance claims?

The difference with road homicide

Moreover, to give an idea, albeit not exhaustive, of the issues still open, it should be noted that the same Bill amends the Criminal Code to coordinate with its contents Articles 589-bis (road homicide) and 590-bis (road personal injuries), specifying that in order to configure the latter offences the state of 'psycho-physical alteration resulting from the consumption of narcotic or psychotropic substances' remains to be verified (with the already known difficulties).

Therefore, there would also be a discrepancy in the verification of the censured conduct (also from a medico-legal point of view) between the Highway Code and the Criminal Code, and it is possible to foresee that, reasonably, these problems and doubts of interpretation will be a topic of discussion in the health, legal, judicial and other fields.

*Complex Clinical Operative Unit of Forensic Medicine of the Julian Isontine University Health Agency