10.10.2024

Driving under the influence of psychoactive substances. New legislative and case law guidelines

While waiting for the decision that the High Court of Cassation and Justice - Panel for the resolution of questions of law is to pronounce on the issue of the concentration of psychoactive substances present in biological samples of drivers, we propose a brief review of the legislative and case law landmarks in this area, which the supreme court is bound by, at least implicitly.

We recall that the High Court of Cassation and Justice - Panel for the resolution of questions of law was referred on 15.03.2024 by the Court of Appeal Brasov, in order to deliver a preliminary ruling on the following question of law: In the case of the offense of driving a vehicle under the influence of psychoactive substances provided for by art. 336 para. (2) of the Criminal Code, for the fulfillment of the pre-existing essential requirement that the defendant was under the influence of psychoactive substances, it is sufficient to establish the presence of the psychoactive substance in the biological evidence, regardless of its concentration, regardless of whether the influence on the ability to drive is presumed absolutely or whether this presumption is a relative one, can it be rebutted by scientific evidence that, despite the presence of psychoactive substances in a minimal concentration, the person is not under the influence of psychoactive substances, with impairment of the ability to drive a motor vehicle on public roads?

The Supreme Court's intervention had indeed become urgent, in the context of the legislative changes of the last year[1], but also in the context of obvious shortcomings in anti-drug policies and in policies relating to road safety.

At the same time, discussions on this subject have increased in the public arena, on the one hand because many of the drug-test machines used by the Traffic Police are not calibrated, with numerous cases of false positive results[2], which have led to the arbitrary opening of criminal cases, and on the other hand, because the legislation is not sufficiently clear in situations where the quantities of psychoactive substances present in biological samples are minute and unlikely to have a concrete effect on a person's ability to drive a motor vehicle, i.e. biochemical factors such as the duration of the metabolization process of psychoactive substances are not taken into account.

At present, such shortcomings have led to a series of lapses, in the sense of opening criminal cases for the commission of the offense provided for in Article 336 para. (2) of the Criminal Code, even though the toxicology reports and forensic medical examinations subsequently revealed that the persons under investigation had used common medicines, such as anti-inflammatory drugs or antipyretic analgesics, and that their ability to drive on public roads had not been affected.

Although it is obviously impossible to predict the solution that the Supreme Court will pronounce on the abovementioned referral, at this point we can identify some landmarks that the High Court will have to take into account, implicitly or explicitly, when deciding on the preliminary referral, the most important being those established in the case law of the Constitutional Court.

As a preliminary, we reiterate that, at the legislative level, by Law no. 213/2023 ("Anastasia Law"), Article 91 of the Criminal Code was supplemented by introducing para. (³¹), according to which "The suspension of the execution of the sentence under supervision cannot be ordered in the case of the offenses referred to in Art. (2) and (3), if they have been committed under Article 335 or 336.". Essentially, in the case of aggravated manslaughter, committed by a person without a driving license or by a driver with a blood alcohol content of more than 0.80 g/l pure alcohol or under the influence of psychoactive substances, the execution of the sentence can no longer be suspended, as the offense provided for by Article 336 of the Criminal Code is a very serious one.

The issue of the influence of psychoactive substances on the ability of drivers to drive has been analyzed by the Constitutional Court, most recently in Decision No. 452 of June 29, 2021[3]. The plea of unconstitutionality raised concerned the provisions of Article 336 para. (2) of the Criminal Code, with reference to the phrases "under the influence " and "psychoactive substances".

The Constitutional Court concluded (with reference also to previous decisions[4] handed down on similar complaints) that, given the wide range of products that may have psychoactive effects, as reflected in the special legislation, the legislature cannot objectively provide for a minimum concentration of psychoactive substances as an essential requirement with regard to the material element of the objective aspect in the case of the offense of driving a vehicle under the influence of psychoactive substances, an offense covered by Article 336 para. (2) of the Criminal Code. In the CCR's view, the legislator intended to criminalize the offense in any situation of driving a vehicle after consuming psychoactive substances.

At the same time, the CCR noted that "It is immaterial whether the state of the driver of the vehicle under the influence of psychoactive substances is the result of abuse - which implies the consumption of plants, substances and preparations containing substances that are likely to have psychoactive effects outside a medical prescription - or is the result of medical use, which means the lawful prescription use of medicines under the control of national legislation, since the addressees of the contested text of the law carry out an activity involving a permitted risk, for which purpose they are subject to forms of training, so that they are informed and diligent persons who, while holding a driving licence, are required to keep up to date with the relevant legal rules. "

The Constitutional Court therefore holds that the standard of diligence of drivers must be high, as they are engaged in an activity involving a licensed risk and are subject to forms of schooling for that purpose, which is why the manner of consumption, the quantity ingested or the effects of psychoactive substances are irrelevant.

In reality, things are much more nuanced, and the cases generated prove this, in the sense that, at least from a legal point of view, there is a sign of equality between driving a vehicle by a person using habitual drugs and driving a vehicle by a person under the influence of narcotic substances among those provided for in Law No 143/2000 on preventing and combating illicit drug trafficking and use and in Law No 142/2018 on drug precursors.

At the same time, although we agree with the opinion of the CCR in the sense that, given the multiplicity of substances likely to have psychoactive effects, the legislator cannot establish a minimum threshold of the concentration of the substance with such an effect, as is the case with alcohol, nevertheless, including in this situation, a distinction must be made, namely a differentiated punitive treatment. In concrete terms, we consider that the case of drivers who are still under the influence of such substances at the time of the test is quite different from the case of those who no longer show any effect which could affect their ability to drive, as the psychoactive substances were consumed some time ago.

For example, we can imagine a situation in which a person consumes psychoactive substances outside of Romania, in a licensed setting, and some time after returning to the country, drives a motor vehicle, tests positive, and is found to have a small concentration of the substance in the body. In such a scenario, we consider that it is, to say the least, unfair to apply the same punitive treatment to completely different hypotheses.

For this reason, in our opinion, in addition to the clarification to be provided by the supreme court, the legislator should also intervene to supplement the current testing system with a medical examination carried out at the time of the control, which should be corroborated with the test result.

We therefore conclude that the intervention of the High Court of Cassation and Justice is a necessary first step towards a complete and hopefully balanced regulation, as there are a number of divergences, both at the legislative level and in practice, and we will see, in the end, to what extent the Supreme Court will adopt the reasoning of the Constitutional Court.

An article signed by Mihai Trandafir - Managing Associate (mtrandafir@stoica-asociatii.ro) and Paula Maftei - Associate (pmaftei@stoica-asociatii.ro), STOICA & ASOCIATII.

[1] Promulgation of Law No. 213/2023; Adoption of GEO No. 97 of July 11, 2024 for the establishment of measures in the field of road safety; Amendment and completion of GEO No. 195/2002 on traffic on public roads (Road Code), etc.

[2] According to reports prepared by the Superior Council of Forensic Medicine, the most errors in the rapid tests were for amphetamine and benzodiazepine substances, with four out of five samples being disproved in the laboratory.

[3] The CCR decision was published in Official Gazette No. 1138 of November 26, 2021.

[4] Decision No. 138/2017 on the rejection of the exception of unconstitutionality of the provisions of Article 336 para. (2) of the Criminal Code; Decision No 101/2019 on the rejection of the exception of unconstitutionality of the provisions of Art. 336 para. (2) of the Criminal Code.