Driving Under the Influence of Drugs – Legal Consequences and Defence Options
Driving under the influence of narcotics is treated by the law just as seriously as drink driving – it carries a custodial sentence and a mandatory long-term driving disqualification. Cases of this kind have their own distinctive features, however: the absence of statutory concentration thresholds, the unreliability of preliminary tests and the need for an expert opinion create more scope for a defence than alcohol cases typically allow.
Contents
- How the law classifies driving under the influence of drugs
- How narcotics are detected in a driver
- The absence of statutory thresholds – what this means in practice
- What penalties apply for driving after taking drugs
- Driving disqualification – how it is calculated
- Defence options in drug cases
- How the proceedings work – from arrest to judgment
- A practical example from our caseload
- FAQ
How the Law Classifies Driving Under the Influence of Drugs
As with alcohol, liability for driving after taking drugs can take the form of a criminal offence or a misdemeanour – depending on the assessment of the degree to which the driver was impaired.
A criminal offence under Article 178a of the Criminal Code arises where a driver operated a vehicle under the influence of a narcotic substance. A misdemeanour under Article 87 of the Code of Misdemeanours arises where the driver was in a state following use of a substance acting similarly to alcohol. The distinction between these states – “under the influence” and “following use” – is not, however, defined in the legislation by specific concentration values, as it is in the case of alcohol. In practice, the classification is determined by the opinion of an expert, who assesses whether the substance detected at the relevant concentration could actually have affected the driver’s psychomotor capacity at the time of the incident.
How Narcotics Are Detected in a Driver
During a roadside check, where an officer suspects a driver is under the influence of narcotics, a preliminary saliva test is carried out using a specialist device. The test detects the presence of a substance but does not measure its concentration – it is a trigger for further steps, not evidence in the proceedings.
A positive saliva test result, or a situation where the test cannot be carried out, results in the driver being directed to have blood taken. A blood test is the proper evidence in the proceedings – it establishes both the presence of the substance and its concentration. The laboratory results are then analysed by an expert, whose opinion forms the basis for the legal classification of the conduct.
Refusing to submit to testing may be treated by the authorities as a circumstance unfavourable to the driver. In such a situation, the police have the right to seize the driving licence and order a blood draw.
The Absence of Statutory Thresholds – What This Means in Practice
Unlike alcohol, for which the legislation expressly sets out the concentration thresholds separating use from intoxication, no provision sets out limit values for narcotics. This means that the mere presence of a substance in the blood does not automatically establish either a criminal offence or a misdemeanour.
The classification is determined by the opinion of a toxicologist or forensic medicine expert, who assesses whether the concentration of the substance detected could actually have affected the driver’s ability to drive safely in the specific circumstances. It is this assessment – not the mere fact of detection – that is in dispute in many cases. The expert’s opinion is open to scrutiny and can be challenged by the defence, which may apply for the appointment of a different expert or ask supplementary questions in relation to the opinion produced.
What Penalties Apply for Driving After Taking Drugs
The misdemeanour under Article 87 of the Code of Misdemeanours carries detention or a fine. The court also imposes a mandatory driving disqualification.
For the criminal offence under Article 178a of the Criminal Code, the court may impose a custodial sentence of up to three years. Regardless of the type of sentence, the court is required to impose a driving disqualification of at least three years – up to a lifetime disqualification in cases of recidivism or particularly serious aggravating circumstances.
When determining the sentence, the court takes into account the type of substance detected and its concentration, the circumstances of the drive (time, location, traffic density), the driver’s previous criminal record, the expert’s opinion on the actual effect of the substance on driving ability, and the defendant’s conduct during the proceedings.
Driving Disqualification – How It Is Calculated
A driving disqualification runs from the date the driving licence document was physically seized, not from the date the judgment became final. Under Article 63 § 2 of the Criminal Code, the court credits against the disqualification imposed the period during which the corresponding measure was actually applied – that is, the time elapsed between the seizure of the licence and the final judgment. Ensuring that the court takes this period into account in the terms of its decision is one of the defence lawyer’s fundamental tasks and can shorten the actual duration of the ban by several months or more.
Defence Options in Drug Cases
Drug driving cases give the defence lawyer more tools than alcohol cases. The absence of statutory thresholds and the need for expert assessment mean that challenging the evidence is not only possible but frequently effective.
The first area for a defence is the correctness of the saliva test. These tests can be unreliable and may produce false positive results – verifying the procedure used and the condition of the device is the starting point for analysing the case.
A further area is the expert’s opinion and the time that has elapsed since any substance was consumed. Some substances – THC in cannabis in particular – can remain detectable in the blood for many days after use, even though their effect on psychomotor capacity ceased much earlier. If the expert did not address this point in their assessment, it may be possible to apply for the opinion to be supplemented or for a different expert to be appointed.
A defence based on demonstrating that the substance detected came from lawfully prescribed medication is also possible. Some prescription drugs – including certain analgesics, antidepressants and anxiolytics – contain substances that may produce a positive test result. In such cases, possessing a prescription and medical records, together with an expert opinion assessing the effect of the medication on driving ability, can change the picture significantly.
How the Proceedings Work – From Arrest to Judgment
After the stop and the tests, the police seize the driving licence and refer the case to the prosecutor. Because the proceedings require awaiting blood test results from the laboratory and – in most cases – an expert opinion, drug driving cases tend to take longer than alcohol cases. The time from the stop to a final judgment is often between several months and nearly two years.
The driver has the right to refuse to answer questions before consulting a lawyer – and this right is worth exercising. Statements made immediately after the stop, under stress, may be incomplete or inconsistent with the later defence position.
A Practical Example from Our Caseload
A driver stopped at a roadside check in Poznań had been behaving in a way that aroused the officer’s suspicions. A saliva test showed the presence of THC. The driver acknowledged having smoked cannabis, but several days before the stop. A blood test confirmed the presence of THC, but at a very low concentration. The firm engaged a toxicology expert, who assessed that at the detected concentration the substance could no longer have affected the driver’s psychomotor capacity at the time of the check. On the basis of that opinion, the court classified the conduct as a misdemeanour rather than a criminal offence, resulting in significantly lighter sanctions and a shorter driving disqualification.
FAQ
Can I refuse to submit to a drug test? Technically yes, but it carries risks. Refusal may be treated by the authorities as a circumstance unfavourable to the driver. The police also have the right to seize the driving licence and order a blood draw regardless of a refusal to take the saliva test. Before making any decision, it is worth contacting a lawyer as quickly as possible.
Can prescription medication cause a positive drug test result? Yes. Some prescription drugs – including certain analgesics, antidepressants and anxiolytics – contain substances detected by drug tests. If a driver is taking such medication, it is worth keeping the prescription and medical records to hand. Demonstrating that the substance detected came from a lawfully administered medication can have significant implications for the classification of the conduct.
Does a positive test always mean I was under the influence of drugs? No. A positive saliva test result is merely a trigger for further investigation – not evidence. Even a blood test result confirming the presence of a substance does not automatically establish a criminal offence or a misdemeanour, because there are no statutory concentration thresholds. Whether and to what extent the substance affected driving ability is determined by an expert’s opinion.
How long can drugs remain detectable in the blood? This depends on the substance, the dose, the frequency of use and individual metabolism – which is why stating specific figures carries significant uncertainty. As a general indication, THC can remain in the blood longer than some other substances, particularly with regular use. The key point, however, is that the detectability of a substance and its actual effect on psychomotor capacity are two separate questions – the expert assesses the latter, not simply the presence of the substance.
How long does a drug driving case take? Typically longer than an equivalent alcohol case – due to the time required for laboratory results and an expert opinion. The entire proceedings from the stop to a final judgment can take from several months to nearly two years, depending on the complexity of the case and the court’s workload.
Contact Us
A drug driving case requires prompt analysis of the evidence and a considered strategy – particularly since the critical expert opinion can be challenged, but only with the right preparation.
It pays to be properly prepared: both in knowing what you can claim and in having a clear strategy.
We handle cases for drivers in Poznań and across the Wielkopolska region, with in-person and online consultations available for clients elsewhere in Poland.
Adwokat Marta Krzyżanowicz and Adwokat Michalina Koligot Law Firm “Adwokat dla Kierowców w Poznaniu”
ul. Adama Mickiewicza 18/3, 60-834 Poznań
tel. +48 795 001 536 · +48 531 335 713
kontakt@adwokatdlakierowcy.pl · www.adwokatdlakierowcy.pl
This text is for general information purposes only and does not constitute legal advice. Every case requires individual analysis.