Drivers were given the right to take pills – Newspaper Kommersant No. 221 (7422) dated 11/29/2022

Russian courts can no longer deprive drivers of their rights and fine them 30,000 rubles if traces of drugs other than psychotropic or narcotic drugs are found in their bodies. We are talking, for example, about phenibut, phenazepam, gabapentin, some antidepressants. This follows from the decision of the Constitutional Court (CC). The Constitutional Court ordered the State Duma to “immediately” amend the Code of Administrative Offenses and come up with a mechanism for punishing drivers who abuse drugs that cause intoxication and the effect of intoxication.

On Monday, the decision of the Constitutional Court was published (.pdf) on the verification of the constitutionality of Art. 12.8 of the Code of Administrative Offenses, containing sanctions for driving while intoxicated. From now on, if a drug is found in the driver’s blood or urine that is not included in the list of psychotropic or narcotic (Government Decree No. 681), it is impossible to hold him liable for drunk driving or refusing to be examined.

The decision was made after consideration by the Constitutional Court of the request of the Salekhard City Court (YaNAO), about which “Kommersant” told in September. On August 8, 2021, during a medical examination, the driver Vasily Shevelev was found in the body with gabapentin, a drug for the treatment of epilepsy, not related to narcotic or psychotropic. The court deprived Mr. Shevelev of his rights and imposed a fine of 30,000 rubles. The motorist appealed the decision to the Salekhard City Court, where they drew attention to the fact that the note to Art. 12.8 of the Code of Administrative Offenses allows to punish for the use of alcohol, drugs and psychotropic substances (specified in the 681st resolution), but not for drugs. In this regard, a request was sent to the CC. The traffic police have long been talking about the legislative gap in this area.

The Constitutional Court recognized Art. 12.8 of the Code of Administrative Offenses, which does not comply with the Basic Law, confirming, in fact, the arguments of the Salekhard City Court.

Since the publication of the decision of the Constitutional Court, it is impossible to use Art. 12.28 (drunken driving) and 12.27 (refusal to test) to punish drivers for having traces of drugs from among those not included in the order (despite the fact that they impair the driver’s attention and reaction) were found in their bodies. Note that a formal ban on driving under the influence of such drugs has long existed (clause 2.7 of the SDA) (.pdf), but it is not yet possible to impose sanctions for its violation.

The ban imposed by the Constitutional Court is a temporary measure. The State Duma is obliged, taking into account the position of the Constitutional Court, to “immediately” eliminate the identified gap, follows from the decision of the Constitutional Court. The deadline is not specified in the decision.

“Recently, a vicious tendency has taken root in judicial practice, based on a broad interpretation of Article 12.8,” Serhiy Radko, lawyer and lawyer for the “Freedom of Choice” movement, welcomed the decision. psychotropic substances, and took only drugs. These could be, for example, antidepressants – phenazepam, amitriptyline, phenibut, etc. In this case, the courts were guided only by an indication in the instructions for these drugs about the undesirability or a ban on driving during the period of taking medications. The instruction cannot replace the law, especially since many of the over-the-counter drugs we are used to (Theraflu, Coldrex, etc.) also often contain similar restrictions. And this creates broad prerequisites for an arbitrary understanding of the state of intoxication and a broad interpretation of the provisions of the law.

Lawyer Lev Voropaev believes that drivers who use drugs that include substances not mentioned in the 681st resolution are “units”, but judicial practice has developed, as a rule, not in their favor. The majority of cases, experts emphasize, are still connected with the identification of substances from the prohibited list.

For this, they will continue to deprive of rights, it follows from the decision of the Constitutional Court. If there are substances from the prohibited list in the composition of the medicinal product, the courts, as today, will have the right to apply Art. 12.8 of the Code of Administrative Offenses and, in certain cases, Art. 6.9 of the Code of Administrative Offenses (use of narcotic drugs or psychotropic substances without a doctor’s prescription). This list includes, in particular, phenobarbital (included, for example, in the composition of corvalol and valocordin), clonazepam (prescribed for epilepsy) and other substances – aprofen, galazepam, zolpidem, mesocarb, etc.

Ivan Buranov