When is driving under the influence of drug metabolites present?
The charge of driving after using narcotic substances or their analogues under Article 343b, paragraph 3 of the Penal Code is among the most frequently brought against drivers in recent years. The legislation provides for criminal liability for driving a motor vehicle after using narcotic substances or their analogues, established in accordance with the proper procedure. The establishment is made in accordance with the rules of Ordinance No. 1 of 2017.
In court practice, driving with metabolites—residual products from the breakdown of narcotic substances—is often established. This raises key questions, such as whether the presence of metabolites in the blood of a motor vehicle driver is sufficient to secure a conviction. Or whether it must be proven that the driver was under the influence of the metabolite in question at the time of driving?
What are metabolites of narcotic substances?
Metabolites are chemical compounds formed during the breakdown of drugs in the human body. They can be divided into active and inactive metabolites. If a metabolite is tested and found to be active, it still has some psychoactive effect on the driver.
The inactive metabolite is incapable of causing any effect on the human body and does not actively influence behavior, but its presence indicates that it is still possible that a narcotic substance or its analogue was used at some point in the past prior to the police check. The presence of an inactive metabolite in the blood does not necessarily mean that the driver was in a condition that endangered traffic safety.
For the purposes of criminal law, narcotic drugs are all substances that are listed in the schedules a9> to the Regulation on the order for classifying plants and substances as narcotics. There are three groups of narcotic substances:
- Plants and substances prohibited for use in human and veterinary medicine due to the high risk to public health. These include, for example, marijuana/cannabis (tetrahydrocannabinol and a number of its compounds), hexahydrocannabinol and a number of its compounds, amphetamine, methamphetamine, cocaine, heroin, etc.
- High-risk substances authorised for use in human and veterinary medicine. These include, for example, codeine, methadone, morphine, oxycodone, fentanyl, etc.
- Hazardous substances. Among them are a number of ingredients in widely distributed medicinal products, provided by doctor’s prescription such as Xanax, alprazolam, tramadol and others.
Examples of drug metabolites
The main metabolite by which cannabis is recognized is delta-9-tetrahydrocannabinol/delta-9-THC/Δ⁹-THC or 11-nor-9-carboxy-Δ⁹-tetrahydrocannabinol (THC-COOH). Proof of cocaine use is based primarily on the identification of its main metabolite, benzoylecgonine. The mere presence of amphetamine in the blood may lead to the conclusion of previous methamphetamine use, as amphetamine is a metabolite of methamphetamine. 6-monoacetylmorphine (6-MAM) and 3-monoacetylmorphine (3-MAM) are metabolites of heroin.
Problems with driving with drug metabolites in the blood
In principle, Bulgaria applies a zero tolerance policy towards drivers who have been found to be in possession of narcotic substances in accordance with the established procedure, i.e. for the act to be considered a criminal offense, it is sufficient to establish use without proving impairment. This means that even if only metabolites are present, regardless of their effect and activity in the body, a conviction may be reached, as they constitute evidence of drug use.
Bulgarian criminal law does not currently require the prosecution to prove the fact of influence in order for driving with drug metabolites in the blood to constitute a crime. This undoubtedly places even greater emphasis on the legal significance of chemical-toxicological (toxicochemical) examinations, which are ordered in every case involving charges of driving with drug metabolites in the blood.
However, driving with drug metabolites in your blood is not always a crime.
Defense against charges of driving with drug metabolites in the blood
Effective defense in criminal charges for driving with drug metabolites in the blood includes:
- hiring an experienced criminal defense lawyer
- request for the appointment of a repeat or additional toxicological and chemical examination
- detailed questioning of the experts – chemist and toxicologist
- Legal-theoretical analysis of scientific sources of criminal law and judicial practice.
Case from the law firm – acquittal for driving with drug metabolites in the blood
Zlatin* lived in the Kingdom of the Netherlands for two years but decided to return to Bulgaria. He used marijuana on the day of his flight to Bulgaria and was subjected to a police check as a driver of a motor vehicle for drug use. The test showed a positive result for cannabis – 25. Zlatin contested the test result, as he did not expect the substance to be detected in his blood so long after use. He therefore insisted that the police officers accompany him to a medical facility to provide biological samples.
The results of the biological sample tests were positive for carboxy-Δ⁹-tetrahydrocannabinol. According to the appointed forensic toxicological examination, the presence of this metabolite proves the use of marijuana. Zlatin was charged with driving under the influence of drugs and was brought to trial with an indictment.
With the assistance of the law firm, Zlatin was found not guilty and was acquitted of the charges against him with a final decision, as during the examination of the experts who prepared the expert report, it was established that although the presence of carboxy-Δ⁹-tetrahydrocannabinol in his blood proved marijuana use, this use was so long ago relative to the time of the check that Zlatin was not under the influence of the narcotic substance and did not affect transport safety.
* The name has been changed with a view to preserving attorney-client privilege.
Consequences in the event of charges for driving with metabolites of drugs in the blood
As mentioned above, the detection of a drug metabolite in a driver’s blood proves that they have used such a substance at some point in the past. Accordingly, in such cases, the prosecution brings charges for driving under the influence of drugs. There are two possible outcomes of such a charge:
- Acquittal if it is proven that the driver used the narcotic substances a long time before the check and was not under their influence at the time of driving the motor vehicle.
- A conviction, which may result in imprisonment for one to three years, a fine of one thousand to five thousand leva, and deprivation of the driver’s right to drive a motor vehicle for a period determined by the court. At the same time, the court will confiscate the vehicle in favor of the state if it is owned by the driver or will award its equivalent value if it is not. In this case, a suspended sentence may be imposed.
Conclusion
According to the Bulgarian criminal justice system, the presence of metabolites is often sufficient for a conviction under Article 343b, paragraph 3 of the Criminal Code. However, this does not mean that the defendant is defenseless—the right strategy and expert defense can lead to an acquittal.
Authors: Dr. Silvia Petkova, attorney-at-law, and attorney-at-law. Yordan Petrov
Silvia Petkova Sole Proprietorship Law Firm is a specialized criminal law firm with experts who have extensive experience in successfully representing clients in criminal cases involving driving under the influence of drugs, as well as driving with drug metabolites.
Legal consultations and assumption of representation are carried out by previously scheduled appointment. The company’s lawyers provide legal assistance throughout the country.
Contact:
Working hours: Monday to Friday from 10:00 to 18:00. Address: Sofia, 2 Tri Ushi St., 3rd floor. Tel. 0885 47 77 57. Email: office@petkovalegal.com
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