“It should be noted that this method (a saliva test) alone does not prove in a reliable way that a person is under the influence of narcotic substances, but that it would be, in any case, a mere indicator of whether that person has been able to consume or not a substance, but not determined the moment in which he has done so, that is, the previous moment to drive or even the same day, nor the intensity or effect Subject capabilities to drive ”.
With this paragraph, a contentious-administrative judge has disrupted, at least in the case that reached its headquarters, the way in which the General Directorate of Traffic (DGT) controls-and sanctions-driving under the effects of narcotics, except alcohol.
A judgment of the Contentious-Administrative Court No. 4 of Murcia has annulled a fine by cocaine to a driver in a road control because he considers that the procedure followed to justify the sanction-based on a positive in a saliva test carried out in situ, the usual of the Civil Guard-is insufficient to demonstrate that the sanctioned person was affected by the drug.
The judge does not leave it written, but his reasoning seems to question the known as drugstore –And at least some positives in road anti -drug tests – as a sufficient element by itself to sanction drivers. Thus gives the reason in some way to the civil groups that have been pointing out the injustice of a norm and a method that do not sanction to drive affected by drugs, but the mere presence of substances in the body, although the trail of some of them can take several days to disappear from the body.
“This shows that the General Directorate of Traffic (DGT) not only sanctions for the presence of drugs that were consumed days ago and does not show that they go under their effects, but also sanctioned by the presence of drug metabolites that can last in the body weeks,” explains Francisco Azorín, the lawyer specialized in crimes of drug trafficking and administrative procedures drugstore that has taken the case.
Juan José Ramírez, former Civil Guardia and author of The doctoral thesis Drug controls to drivers in Spain: Analysis of legislation, the specific training of professionals and detection devicesexplains that more and more sentences are being issued to this that question the policy of “zero tolerance” that governs the regulations regarding drugs and driving. “The metabolites appear when the body degrades a substance that has been consumed to expel it,” he illustrates. “Due to the mere presence of an inactive metabolite, the person cannot be sanctioned for having consumed a substance. It is as if they sanction someone to get drunk 15 days ago. As long as that line of zero tolerance is not abandoned for certain substances we will continue to have these problems, hopefully the common sense is imposed a little,” he says.
This newspaper has asked the DGT to assess the sentence and explain whether to resort to it, but has not obtained an answer.
Presence yes, affectation does not have to
The test tried in the Region of Murcia, made in the A-30, returned a positive for benzoilecgonine, “the main inactive metabolite of cocaine,” the sentence clarifies. That result earned the driver a sanction for the presence of drugs (cocaine) in the body of one thousand euros and six points of the driving card, as stated Article 14.1 of Royal Decree 6/2015. But “the administration supported this conclusion exclusively on the toxicological report confirming the presence of substances in the salival sample analysis,” says the judge, an aspect that would be key in the subsequent annulment of the sanction.
The sentence explains that “benzoilecgonine is the main inactive metabolite of cocaine, generated in the liver after consumption and eliminated mainly by urine. At the toxicological and legal level, its detection in bodily fluids (such as saliva, blood or urine) is used as an indicator of prior cocaine consumption”, but then clarifies that it can be reached there, it can only be there, it does not mean, it can only be there Person, among other things because this molecule is not psychoactive.
The presence “does not necessarily imply that there is an active presence of the drug in the body at the time of analysis. Benzoilecgonine as an indicator of cocaine consumption is not psychoactive and therefore the positive in this substance does not determine, by itself and without other external data, the conduction under the effects of drugs being out of the type of article 14 of Royal Legislative Decree 6/2015”.
The presence of this substance in the organism, the only thing that tells us is that the effects of cocaine have disappeared days ago, since this substance appears when processed by the body
Administrative Contentious Court No. 4 of Murcia
The judge explains – from a forensic report that he requested – that in fact it could be considered the opposite: “The presence of this substance in the body is the only thing that indicates us is that the effects of cocaine before”).
This argument of the judge gives the reason in some way – although the sentence does not question the system, it is limited to talking about the specific case – to various civil associations, such as the European Observatory of Consumption and Cultivation of Cannabis (OECC), which have been denouncing that the popularly known as Drugage is invalid to detect if a driver is driving under the effects of drugs because it does not indicate levels of concentration of drug (Something that alcohol tests do) and to punish the mere presence was unfair.
The sentence recalls that “the administrative offending type sanctions the mere 'presence' of drugs in the driver's body, and not its influence or affectation to psychophysical capacities,” but concludes despite the fact that “in this context, the toxicological report contributed cannot be considered proof of sufficient position or conclusive evidence that allows to affirm that, at the time when the plaintiff was arrested, it was arrested. cocaine in your body. ” The guarantees for the citizen prevail in the face of regulations perhaps something ambiguous.
With all of the above, the judge applies the principle of In doubt for the accused (In case of doubt, in favor of the inmate) and cancels the sanction imposed on the driver.
“Road safety is not protected”
The Azorín lawyer clarifies that his fight is not to exonerate drivers under the effects of drugs, but “that the person who consumes does not positively give five days (of having done so) or that the passive consumer of a joint not positively gives positive in the drug addict”, two circumstances, says, that they give the current system. “The drugage is not protecting road safety, all we have is a repression machine of the drug user and a way of financing public coffers,” he closes.
The former Civil Guardia Ramírez, very critical of the current system, explains that “there are more and more judges who say that it is not accredited that the simple presence of a substance in the agency harms the driver's capabilities”, and wonders if “the administration will react one day in view that the cancellations of sanctioning files are piled up”.
