Decision no. 25 of January 27, 2025, of the Romanian Supreme Court (Panel for the resolution of certain questions of law) – iccj.ro (Romanian text)
In short, this decision established that:
- The mere presence of a drug in your system is no longer enough for a conviction.
- The prosecution must now prove the substance could have actually impaired your driving.
- This opens up new, stronger defense strategies for your case.
The decision aimed to clarify the meaning of the phrase “under the influence of psychoactive substances” from Art. 336 para. (2) of the Romanian Criminal Code, which criminalizes driving a vehicle in this state. The essential questions, raised by the Courts of Appeal of Brașov and Cluj, were:
- Is the mere finding of the presence of the psychoactive substance in biological samples (blood, urine), regardless of concentration, sufficient to consider that the person is “under the influence,” thus establishing an absolute presumption that their ability to drive was affected?
- Or, conversely, does “under the influence” mean it must be proven that the person’s driving ability was actually impaired (influenced) as a result of consumption, with the presumption being only relative and rebuttable by evidence (e.g., very low concentration, lack of effects)?
Context and Diverging Opinions:
- Non-unitary Judicial Practice: National courts had differing opinions. Some considered the presence of the substance sufficient (absolute presumption), while others required proof of impaired driving ability (relative presumption).
- Arguments for Absolute Presumption (Presence = Influence): Proponents cited previous case law from the Romanian Supreme Court and the Constitutional Court (which allegedly indicated that the legislator cannot set minimum thresholds and had criminalized driving after any consumption), the lack of a legal threshold (unlike for alcohol), and the definition of psychoactive effects (which implies changes to the nervous system). The General Prosecutor’s Office and DIICOT supported this interpretation.
- Arguments for Relative Presumption (Influence = Impaired Ability): It was argued that the law’s purpose is to protect traffic safety, which is only harmed when the driver’s abilities are effectively diminished. It was emphasized that substances can be detected long after their effects have disappeared (especially inactive metabolites or in infinitesimal concentrations), and an absolute presumption would punish past consumption, not present danger, making it disproportionate. The majority of expert opinions (law faculties, INML) supported this view.
- Opinion of the INML (National Institute of Forensic Medicine): This was crucial, showing that the state of “being under the influence” depends on the presence of the active substance (or active metabolites) in the blood, in concentrations above the cut-off limit (a scientifically relevant threshold), capable of affecting the central nervous system. Presence in urine or below the cut-off limit in blood does not equate to being under the influence at the time of driving.
The Romanian Supreme Court‘s Decision:
The Romanian Supreme Court admitted the referrals and established the following:
- To fulfill the condition that the person was “under the influence of psychoactive substances” (an essential element of the offense under Art. 336 para. 2 of the Romanian Criminal Code), the mere finding of the substance’s presence in biological samples is not sufficient.
- It is necessary to cumulatively establish:
- The presence of the psychoactive substance in biological samples.
- The aptitude (capacity) of this substance, in the given context (concentration, active/inactive form, presence in blood, etc.), to be able to cause an impairment of the perpetrator’s driving ability.
In essence, the Romanian Supreme Court rejected the idea of an absolute presumption. Even though the offense is one of abstract danger (proof of a concrete danger is not required), the mere presence of traces of prior consumption, which is no longer capable of producing psychoactive effects relevant to driving (according to forensic scientific data), is not sufficient to establish the offense. It must be demonstrated that, at the time of driving, the detected substance still had the potential to negatively influence the driver’s skills.
This decision is binding on all courts and significantly influences any criminal case concerning the offense provided for by Art. 336 para. (2) of the Romanian Criminal Code – driving a vehicle under the influence of psychoactive substances.
