NUANCES OF HOLDING DRIVERS LIABLE FOR DRIVING UNDER THE INFLUENCE OF DRUGS— Vadim Kolokolnikov, Attorney at Law, Barristers LLC

Pursuant to Part 1 of Article 130 of the Code of Administrative Offenses, as well as paragraph 2.9 of the Traffic Rules, drivers are held liable for operating vehicles while under the influence of alcohol, drugs, or other intoxicating substances, or while under the influence of medications that impair their attention and reaction time.

A test for alcohol intoxication is typically conducted using special portable devices, most commonly the Dräger Alcotest breathalyzer.

At the same time, the presence of drug intoxication is generally determined using an immunochromatographic (IC) test, which is used to determine whether a sample or substance under examination (such as urine, saliva, or blood) certain biochemical markers.

These are rapid tests similar to those used to detect pregnancy, infections, and oncological, gynecological, and cardiological diseases, which make it possible to visually determine (using test strips) the presence or absence of a reaction to certain substances (in our case, narcotic substances).

In accordance with the provisions of Article 266 of the Code of Administrative Offenses, a driver’s examination for alcohol, drug, or other intoxication is conducted by a police officer using special technical equipment.

Only if the driver refuses to undergo such an examination by a police officer using special technical devices, or if the driver disputes the results, is the examination conducted at a healthcare facility.

Similar provisions are set forth in paragraph 7 of the Instructions on the Procedure for Detecting Signs of Alcohol, Drug, or Other Intoxication in Drivers of Motor Vehicles, or of Being Under the Influence of Medications That Reduce Attention and Reaction Time, approved by Order of the Ministry of Internal Affairs of Ukraine, the Ministry of Health of Ukraine dated November 9, 2015, No. 1452/735 (the Instructions).

In accordance with the provisions of Article 266 of the Code of Administrative Offenses, an examination of a person for alcohol, drug, or other intoxication conducted in violation of the requirements of this article is considered invalid.

Signs of drug or other intoxication, according to paragraph 4 of Section II of the Instructions, include:

• the presence of one or more signs of alcohol intoxication (other than the smell of alcohol on the breath);
• constricted or very dilated pupils that do not react to light;
• sluggishness or, conversely, increased liveliness or agitation in gait or speech;
• a flushed face or unnatural pallor.

As we can see, the signs of intoxication (especially drug intoxication) are quite general and may occur, in particular, when a person becomes more nervous while interacting with police officers.

This is likely why paragraph 7 of Section III of the Instructions mandates laboratory testing to identify a narcotic drug or psychotropic substance, while paragraph 8 of Section III of the Instructions states that the purpose of the laboratory test is to identify or specify the substances present that are capable of causing a state of intoxication.

The internationally accepted classification for determining the state of alcohol intoxication in parts per thousand (‰) states that 0.2‰ represents the mildest form of intoxication.

It is believed that this amount of alcohol cannot affect a driver’s condition and can only be detected by measuring devices—either in a laboratory setting or using police breathalyzers.

At the same time, current Ukrainian legislation does not specify what subthreshold level of narcotics in a driver does not affect the driver’s condition or impair their attention and reaction time, and therefore does not constitute grounds for administrative liability.

This issue is of fundamental importance because, according to medical literature, a narcotic substance can be detected several months after use; thus, the quantitative determination of the substance’s concentration, whether it exceeds the threshold level (50 ng/mL) detectable by testing devices, and the type of narcotic substance are of fundamental importance for establishing whether a driver was under the influence of narcotics.

Medical literature indicates that delta-9-tetrahydrocannabinol is responsible for the psychotropic effects of marijuana.

Cannabinoids remain in the body for up to 3–4 weeks with regular use, though this also depends on the amount consumed.

Thus, the state of drug intoxication (and, in fact, the ability to detect drugs) in a person persists much longer than the state of alcohol intoxication.

These findings are supported both by the conclusions of Ukraine’s former Minister of Health, Uliana Suprun, in her article “How to Get an Accurate Result for Alcohol and Drugs” dated April 4, 2019, and by international scientific articles in the field of toxicology.

Conclusions regarding a specific threshold value for cannabinoid intoxication are also supported by the findings of relevant specialists.

Moreover, if we analyze the time frame for the average driver’s referral for a medical examination and the exact time the examination is conducted, it becomes evident that the average examination and testing take 10–20 minutes, which is objectively impossible for performing medical procedures, collecting biological samples, and obtaining the results of their analysis.

Therefore, it is evident that no specialized medical equipment can produce a correct (accurate) result in such a short time, which calls into question the reliability of the test results.

Unfortunately, this position is not supported by all courts in Ukraine for understandable reasons (judges’ heavy caseloads, reluctance to examine medical nuances and specialized literature, the long-standing practice of courts conducting only a formal review of such cases, etc.).

However, some judges find the time and inspiration—as well as considerable procedural courage—to overturn unfounded police reports on the grounds of the absence in the administrative case files of a quantitative determination of the narcotic substance’s content, the absence of data regarding laboratory testing of samples, and so on.

Such decisions include, in particular, the following:

https://reyestr.court.gov.ua/Review/81345751,

https://reyestr.court.gov.ua/Review/83263561,

https://reyestr.court.gov.ua/Review/94928573,

https://reyestr.court.gov.ua/Review/87542484,

https://reyestr.court.gov.ua/Review/96257914,

https://reyestr.court.gov.ua/Review/97178319,

https://reyestr.court.gov.ua/Review/101312619

Thus, it is evident that the mere detection of cannabinoids in a person’s body does not in itself indicate a state of drug intoxication, since such cannabinoid levels may be below the threshold for intoxication.

Therefore, it is not possible to reasonably assert that a driver was under the influence of cannabinoids at the time a police officer issued the relevant report.

At the same time, police officers, in their pursuit of performance metrics, often disregard these provisions.

Therefore, to protect your rights, we recommend immediately documenting all violations, which may later serve as the basis for proving your innocence in court, as well as promptly contacting a specialized medical facility to undergo a second medical examination and obtain a negative result.