30.01.2025

Driving a vehicle under the influence of psychoactive substances. New perspectives

In this article, we will proceed with a brief analysis of the impact that Decision No. 25/2025 of the High Court of Cassation and Justice, panel for the resolution of a question of law in criminal matters, handed down on January 27, 2025, will have on the reference practice. By this Decision, it was held that in order to be applicable, the offense of driving a vehicle under the influence of psychoactive substances, the substance must affect the ability to drive of the perpetrator.

In recent years, the Romanian legislator's view on the criminalization of driving a vehicle under the influence of alcohol or other substances has changed significantly, due to the increasing number of cases in which the commission of this criminal offense has resulted in considerable loss of life and material damage.

The most recent intervention in the content of this offense was made by the High Court of Cassation and Justice in a preliminary ruling on a question of law. Thus, by Decision no. 25/2025 in case no. 620/1/2024, the Supreme Court established that: "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, in order to fulfill the essential condition attached to the material element of the objective side, namely that the defendant was under the influence of psychoactive substances, it is necessary to establish both the presence of the psychoactive substance in the biological evidence and its ability to affect the driving ability of the perpetrator."

First of all, the solution is due to the variety of problems created by the understanding of the meaning of the phrase "under the influence of psychoactive substances " in Article 336 para. (2) of the Criminal Code. It was interpreted in the sense that whenever, following the taking of biological samples, the analyses indicated the presence of substances in the body, the act constituted the offense[1] to which we refer[2]. Of course, the taking of samples was determined by a positive result, following the testing of drivers with "Drugtest" machines.

At the same time, among the reasons underlying the most recent decision of the Supreme Court are the many cases of false-positive results established by the certified means of the police, but also the presence of the substances in the body of the drivers, although the actual consumption had taken place a few days before they drove, consumption which may have taken place in a country where it is legal, such as the Netherlands, Uruguay or Luxembourg.

Notwithstanding this interpretation of the above phrase, some courts have acquitted on the basis of the conclusions of toxicological expert reports which, for example, detected in biological samples only an inactive metabolite of cannabis (THC-COOH), or even a low value of the metabolite detected in the blood. Therefore,the contradictory case law on the matter was another reason for the ICCJ Decision No 25/2025.

Secondly, a shortcoming of the legal text is that it does not specify the minimum amount of psychoactive substance that should be detected in the driver's body in order to incur criminal liability, as is provided for in the case of the offense of driving under the influence of alcohol, where the alcoholic intoxication must be above 0.80 g/l pure alcohol in the blood in order for the offense to correspond to the pattern of Article 336 of the Criminal Code. If this is not the case, the act only entails contraventional liability, constituting a contravention.

The key change brought about by the recent decision, despite the absence of reasoning at this stage, is the reassessment of the importance of the evidence provided by the forensic report, which will establish to what extent the quantity of psychoactive substance in the body impairs the offender's ability to drive. It should be emphasized that such an approach does not lead to the conclusion that driving under the influence of psychoactive substances will be legal, but only that an assessment of each individual case by the judicial authorities is required in order to decide whether to prosecute or subsequently convict on the basis of the expert report assessing the offender's state. This regulates the possibility for drivers to drive even if they are under medical treatment, but in this way also distinguishes between drivers who ingested a tiny amount of the substance a few days ago (possibly in a country where consumption is legal) and those who ingested a large amount that could endanger pedestrians and other road users.

We also note that there have been convictions in the absence of an expert's report, which we do not consider to be in line with the right to a fair trial, a principle also enshrined in Article 6 of the European Convention on Human Rights, since the evidence in criminal proceedings should be given both in favor and against the defendant, so that the court's decision reflects the truth about the factual situation as established in the case.

Therefore, in the future, in order to comply with the recent decision of the supreme court, the judicial bodies will be obliged to order forensic forensic expertise to be carried out if the drivers are found to be positive after being tested with the "Drugtest" type machines in the Romanian police.

Subsequently, the prosecutor will have to order either the case to be dismissed or to be sent to trial, based on the evaluation of all the evidence provided. In this way, it will also be possible to make a judicial individualization of the sanction to be applied to the perpetrator.

However, we would also like to draw attention to one of the shortcomings of these expert reports, which is that, more often than not, given the small number of experts and the heavy workload they have, the time taken to carry out such a report can be very long, increasing the risk of the facts in the case becoming time-barred.

It should also be noted that the decision does not provide a concrete solution for determining the extent to which the psychoactive substance affects the driving ability of the perpetrator, but rather opens the way to resolving a problem which has been around for a long time, but which has been interpreted ad litteram, so as not to lead to inconsistent practice. On the premise of a total ban on driving under the influence of any substances that could be detected by the testing apparatus, the objective facts of the situation, which reveal the preservation of the spatio-temporal perception capacities of road users, have been ignored.

From the point of view of immediate prosecution, the offense of driving a vehicle under the influence of psychoactive substances will remain a dangerous offense, but the danger will be assessed in concrete terms, and it is necessary that it exists. As such, the driver will have to pose a danger to other road users.

In conclusion, the decision of the High Court of Cassation and Justice, although correct in substance, will have to be supplemented in the future by concrete interventions of the legislator, which will establish exactly how to assess the impairment of the ability to drive in order to be covered by the offense provided for in Article 336 para. (2) of the Penal Code. One of these modalities could be the establishment of a minimum threshold of concentration of the substance that entails criminal liability, similar to the offense provided for in the same article, but in paragraph. (1). Another possibility would be to require a forensic report to establish whether the substance ingested was capable of impairing the driver's ability. This last option could be thought of in the same way as Article 184 of the Code of Criminal Procedure[3].



[1] A solution confirmed by the High Court of Cassation and Justice by Decision No. 365/RC of October 16, 2020.

[2] See C. Rotaru in C. Rotaru, A.-R. Trandafir, V. Cioclei, Criminal Law. Special Part II, 6th Edition, Ed. C.H. Beck, Bucharest, 2022, p. 458.

[3] "Art. 184 - Psychiatric forensic expertise: (1) In the case of offenses committed by minors between 14 and 16 years of age, in the case of murder or injury of a newborn child or fetus by the mother, and when the prosecuting body or the court has a doubt about the discernment of the suspect or defendant at the time of the commission of the offense that is the subject of the charge, a psychiatric forensic expertise shall be ordered, and the time limit for the presentation for examination shall be established."

Article written by Mihail Tofan Associate.

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