Judicial Practice Regarding Driving a Vehicle Under the Influence of Psychoactive Substances, Case Dismissal “Any Doubt is in Favor of the Defendant” (in dubio pro reo) under Article 16, Paragraph 1, Letter b) of the Criminal Procedure Code – In the present case, the dismissal of the case was ordered regarding the commission of the offense of driving a vehicle under the influence of alcohol or other substances, an act provided and punished by Article 336, Paragraph 2 of the Criminal Code, as the act is not provided by criminal law.

Article 336: Driving a Vehicle Under the Influence of Alcohol or Other Substances

(1) Driving on public roads a vehicle for which the law requires a driving license by a person who has a blood alcohol concentration of over 0.80 g/l of pure alcohol is punishable by imprisonment from 1 to 5 years and the prohibition of exercising certain rights.

(2) The same penalty applies to a person under the influence of psychoactive substances who drives a vehicle for which the law requires a driving license.

Just as the Criminal Code penalizes driving a vehicle under the influence of alcohol, with imprisonment from 1 to 5 years or a fine, driving under the influence of psychoactive substances, such as drugs, is also penalized. When discussing psychoactive substances, it is important to note that they include a wide range of compounds, from classic drugs like cocaine, cannabis (THC/marijuana) to amphetamine and MMDA.

From a technical-procedural standpoint, detecting drivers in traffic is done through testing with the DRUGTEST device, followed by the collection of blood and urine samples. After collecting the biological samples, a criminal case is opened for the driver for driving under the influence of psychoactive substances, and their driving license is retained for the duration of the criminal process, with the issuance of a proof without the right to drive.

It is essential to note that the offense of driving under the influence of drugs exists regardless of the quantity or type of substance detected. The penalty provided by the Criminal Code for this offense is imprisonment from 1 to 5 years or a criminal fine. However, the specific determination of the penalty and the method of execution varies depending on the circumstances of each case.

Thus, by the order of the criminal investigation bodies dated 28.05.2022, the initiation of criminal proceedings in rem was ordered regarding the commission of the offense of driving a vehicle under the influence of alcohol or other substances, provided by Article 336, Paragraph (2) of the Criminal Code. By the order dated 12.09.2023, the continuation of the criminal proceedings was ordered against B.M.A., who acquired the status of suspect for committing the offense of driving a vehicle under the influence of alcohol or other substances, provided by Article 336, Paragraph (2) of the Criminal Code. By the order dated 19.03.2024, the initiation of criminal proceedings was ordered against the suspect B.M.A., who acquired the status of defendant for committing the offense of driving a vehicle under the influence of alcohol or other substances, provided by Article 336, Paragraph (2) of the Criminal Code.

In fact, on 28.05.2022, around 17:29, the defendant was detected and stopped in traffic by police officers from the Drobeta Turnu Severin Municipal Police, while driving a Volkswagen Golf with registration number MH-XX-XXX on I.C. Brătianu Boulevard in Drobeta Turnu Severin. In the context of the control carried out, the defendant was tested with the Drugtest device, the result being positive for cocaine consumption. Following the result, the defendant was taken to the C.F.R. Hospital in Drobeta Turnu Severin, where biological samples were collected to determine psychoactive substances. From the toxicological analysis report no. XXX/XX.XX.XXXX of I.N.M.L. Mina Minovici, it was found that, following the testing, the presence in plasma, by the GCMS method, of benzoylecgonine (0.019 µg/ml) was detected, and in urine, by the same method, the presence of cocaine and its metabolite was detected.

Interviewed in the presence of the chosen lawyer Alin Cismaru, the defendant stated that about 3 days ago, he attended a party and it is possible that someone put drugs in his drink or that he drank from someone else’s glass, which could have contained drugs.

The Constitutional Court, through Decision no. 138/14.03.2017, makes a distinction between the terms “consumption” and “influence,” using the term “consumption” when referring to the premise situation and the term “influence” when referring to the material element. It states that “the special legal object of the offense provided by the provisions of Article 336, Paragraph (2) of the Criminal Code is represented by social relations concerning the protection of road safety on public roads, social relations whose normal existence is conditioned by the prohibition of driving vehicles under the influence of psychoactive substances.” It follows, therefore, that the danger is not represented by prior consumption, but by driving in a changed physiological state.

Thus, it is stated that “for the determination of psychoactive substance consumption, laboratory analysis is necessary, which must establish the existence of these substances in the driver’s body.” It follows, therefore, that laboratory analysis (toxicological analysis report) only determines the premise situation consisting of “consumption.” From the overall reasoning of the constitutional court, it is concluded that the premise situation of the offense provided by Article 336, Paragraph 2 of the Criminal Code is the consumption of psychoactive substances, understood as the introduction into the body of these substances, regardless of concentration and method of introduction, their presence in the person’s body being proven by the toxicological analysis report.

The material element is represented by driving a vehicle by a person who is under the influence of these substances. It is true that the legislator incriminates any illicit conduct of driving a vehicle after consuming a psychoactive substance, regardless of the amount ingested, but the offense cannot exist without the essential requirement of the objective side of the offense, namely being “under the influence of the ingested substance.”

In the case before you, from clinical examination no. XXXXX dated XX.XX.XXXX, prepared by the medical staff of the C.F.R. Hospital in Drobeta Turnu Severin, it results that at the time of the examination, the defendant had an orderly appearance, an appropriate attitude, a calm behavior, was temporally and spatially oriented, did not emit an alcoholic odor, and had present reflexes. Therefore, the defendant was not under the influence of psychoactive substances capable of affecting his ability to drive vehicles on public roads. The substances identified in the defendant’s body represent inactive metabolites and only attest that, at some point in the past, the defendant consumed a drug.

In these circumstances, it was considered that there is doubt regarding the proof that the defendant drove the vehicle under the influence of psychoactive substances. The conclusions of the analysis report cannot eliminate this doubt, as there are no sufficiently strong aspects presented to overturn it, especially since this last medical act highlights that, at the time of the clinical examination, the defendant had an appropriate attitude, was cooperative, calm, spatially and temporally oriented, with precise movements.

Since the evidence is not certain, leaving room for uncertainty regarding this aspect, the case prosecutor considered that the rule ‘any doubt is in favor of the defendant’ (in dubio pro reo) should be applied, thus the case was dismissed under Article 16 paragraph 1 letter b) of the Criminal Procedure Code, regarding the offense of driving a vehicle under the influence of alcohol or other substances, an act provided and punished by Article 336 paragraph 2 of the Criminal Code, considering that the act is not provided by criminal law.

The assistance of a lawyer from the early stages of the criminal investigation can ensure a favorable solution for the defendant.

Specialized literature indicates that after the consumption of psychoactive substances, they are rapidly metabolized, and only a small amount is excreted unchanged. The detection time in urine can vary significantly depending on the type of substance consumed, frequency of use, and the individual’s metabolism.

Here are some general estimates for different substances:

1. Cannabis (THC):

– Occasional use: 1-3 days

– Frequent use: up to 10 days

– Chronic use: up to 30 days or more

2. Cocaine:

– 2-4 days for occasional use

– Up to a week for frequent use

3. Amphetamines:

– 1-3 days

4. Methamphetamines:

– 2-4 days

5. Opiates (e.g., heroin, morphine):

– 2-3 days

6. Benzodiazepines:

– 3-7 days for short-term use

– Up to 4-6 weeks for long-term use

7. MDMA (Ecstasy):

– 2-4 days

8. LSD:

– 1-3 days

These intervals are approximate and can vary based on several factors, including the individual’s health status, hydration, and kidney function. It is important to note that drug tests conducted with the equipment provided and subsequently urine tests are most commonly used for detecting drug use due to ease of collection and relatively long detection periods compared to other methods, such as blood tests.

However, to effectively establish the presence of psychoactive substances in the body, it is necessary to collect biological samples and process these samples at the Institute of Forensic Medicine. In the case of occasional cocaine/marijuana use, THC can no longer be identified in the blood after 8-12 hours from consumption, and traces of metabolites disappear in 2-4 days. Thus, a few days after consumption, psychoactive effects no longer influence driving ability.

For example, if cocaine, cannabis, or amphetamine consumption occurred two days prior, it is unlikely that the substances still produce psychoactive effects that alter senses. Due to effective collaboration between lawyer and client, a dismissal solution was obtained, and the driver’s license was recovered for a driver tested positive for benzoylecgonine/cocaine. Forensic expertise showed that the defendant had normal conduct in traffic and was not under the influence of psychoactive substances at the time of detection.

The dismissal solution was ordered because the constitutive elements of the offense of driving under the influence of psychoactive substances were not met, according to Article 336 paragraph 2 of the Criminal Code. Thus, it was decided to dismiss the case because the act is not provided by criminal law, according to Article 16 paragraph 1 letter b first thesis of the Criminal Procedure Code. (Excerpt from the Prosecutor’s Order from the Prosecutor’s Office attached to the Drobeta Turnu Severin Court).

In conclusion, we wish to inform you that obtaining this favorable solution was possible due to the diligence and efforts made by the client’s defender, Mr. Lawyer Alin Cismaru.

These efforts included managing the criminal file, analyzing the requested evidentiary ensemble, evaluating the circumstances in which the act was committed, as well as considering the perpetrator’s person and the conditions provided by the current legislation. For any further clarifications, please do not hesitate to contact us at the email address office@avlegal.ro or at the phone number 0755-133-339.

Sincerely,

Lawyer Alin Cismaru