Article 187 Legislative Decree 285/1992 - CdS. Driving while impaired mental and physical for the use of drugs: evidence of the importance of urine tests.
Comment to the decision of the Court of Camerino, No 277 of October 2, 2009
With No Judgement 277 of 2 October 2009, the court acquitted Mr. Camerino. X provided by the offense and is punishable by art. 187 cds
The acquittal was based on the fact that the urine test, the only finding that the defendant had been subjected, was not sufficient to determine the actual alteration due to the drug thus detected.
The ruling is part of a trend that at the time of its enactment, there were not many precedents (see Cass. Criminal Section IV, July 9, 2009, No. 28219; Cass. Penal Section IV, July 8, 2008, n . 33 312, cited in justification, the Court of Savona April 3, 2009, No. 354; least it should be noted Trib Bologna, January 7, 2010, n 26).
Article. CdS 187 prohibits "... driving while impaired mental and physical after taking drugs or psychotropic substances which punishes with ...", "... the fine from € 1,500 to € 6,000 and the arrest of three months to a year "and the" suspension of license for six months to a year "for bus drivers, vehicles with a higher total 3.5 tonnes, or "combination of vehicles" and in cases of recurrence within two years of the license is revoked. In case you cause an accident, the penalties are doubled.
particular importance are the investigations to be carried out in order to ascertain the true state of mental and physical alteration of the subject and, just this aspect of the court turned its attention Camerino.
Paragraph 2 of art. 187 provides that the officers "... may subject drivers to qualitative assessments or non-invasive tests, including portable devices "under subsection 3, when the investigations referred to in paragraph 2 provide successful or if there is reasonable ground to believe otherwise that the driver of the vehicle is under the influence resulting from the use of narcotic or psychotropic substances, traffic police officers [...] accompany the driver to fixed or mobile medical facilities related to these organs or at the Traffic Police public health facilities or at those credited for such purposes or otherwise treated, for the sampling of biological fluids for the purpose for carrying out the necessary tests to detect the presence of drugs or psychotropic substances and related medical examination. "
Biological samples to be tested are the urine, saliva and blood.
On 25 February 2005 the Ministry of Health issued the "Test Procedure Drugs, drafted by a specially appointed committee of experts is dedicated specifically to investigations under Article. CDS 187.
Define the matrices used to ascertain biological (blood, urine and saliva), the protocol provides "the indispensability of control over blood, saliva replaceable in case of refusal to draw blood," a "card-clinical toxicological evaluation of psycho-physical condition of the subject and various other "operational procedures for the application of the chain of custody" of samples analyzed (Borriello, Chiarotti, LODI, The operating protocols for Articles 186 and 187 of the Highway Code: A incipit required to submit to verify implementation , health policy).
Ministerial Protocol, regardless of its legal operations, it is significant in that it provides, from a purely scientific point of view, evaluations on the different methods of assessment, examination of the urine giving a decidedly secondary importance. Indeed, it is expected that, if the urine test turns out positive, but that of blood or saliva negative, the latter will prevail on the first.
In other words, it sets out the fundamental inadequacy of the examination of urine, noting the possibility that the same positive results even in non-altered state.
In scientific terms (in my case, necessarily approximate), the metabolites of various drugs can be detected in urine, with positive values \u200b\u200bindicating (concentrations above 50 mg / l), even after several days of the appointment, that is, when the effects of the substance are widely diminished.
In this regard, we note a study by the National Drug Court Institute, Alexandria, Virginia (Volume V, iussue I), dedicated to the retention of cannabinoids and its evaluation in terms of evidence. The study contains a significant
table (page 36) that lists the results of some research carried out between 1982 and 1999, the time of detection of cannabinoids in urine: the table shows that the assumption of marijuana (or its derivatives) is found, with values \u200b\u200bgreater than 50 mg / l, for a period ranging from 25 to 67 days.
This is unequivocally positive findings indicate that cannabinoids measured by urinalysis, may not have evidentiary significance regarding actual altered state of the subject at the time of driving, since the art. 187 Security Council sanctions the conduct of the person who submits himself to Judas when in altered state, that is, when it is still under the influence of the drugs, the urine test can not be used as evidence.
The daily experience of legal practitioners teaches us, however, that most of the complaints for violation of Article. 187 CdS made solely on the basis of examination of urine, as in the case which has occupied the Court of Camerino in the ruling that says.
In the grounds the court upheld the defense argument and, in fact, after noting that the situation in the alert. 187 SC ... is made necessary by the competition of two elements: a) the state of deterioration such as to impair the normal psychological and physical conditions necessary in the performance of the guide and conduct itself constitute a hazard to road safety, b) 's been taking drugs or psychotropic substances, such as to cause the state of deterioration can occur, and appropriate laboratory testing, " that the accused was arrested while he was the Judas of a vehicle that had been established and the "presence of [...] cannabinoids in urine", he observed, however, that could "... considered the same way as now common scientific knowledge that the presence of metabolites is the resulting phase is the time of the essence, is the period of effectiveness of the active "phase, ie, where" ... [...] the body expels the waste. "
the above, it concluded that "the state of alteration can not be inferred from the mere presence of metabolites whose traces linger in the urine after the end of the effectiveness of the active ingredient, acquitting the defendant "because the crime does not exist."
Mr. Alberto Pylons
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