Can a person driving an off-road vehicle be guilty of an offence of drug driving?

22 June 2020

Not reviewed after the date of publication

Question:

A person was riding an off-road motorcycle around a housing estate on public roads. The rider was subject to a roadside drug test in which they tested positive for cocaine.

Can an offence under section 5A still be committed when the motorcycle itself is not registered with the DVLA and its purpose is to be used as 'off road' only?

Answer: 

Section 5A(1) of the Road Traffic Act 1988 states;

'5A(1) This section applies where a person ('D') -

(a) drives or attempts to drive a motor vehicle on a road or other public place, or

(b) is in charge of a motor vehicle on a road or other public place'

A motor vehicle is defined in section 185 of the Road Traffic Act 1988 as:

'subject to section 20 of the Chronically Sick and Disabled Persons Act 1970 (which makes special provision about invalid carriages, within the meaning of that Act), a mechanically propelled vehicle intended or adapted for use on roads'

A mechanically propelled vehicle is a vehicle which can be propelled by mechanical means. Therefore an off road bike would fall within this definition.

Intended or adapted for use on a road is a term that is not defined in statute and is ultimately a matter for the court to decide based on the evidence before it. In the circumstances you describe, it is our opinion that the rider's actions with regard to this motor vehicle would constitute an offence under section 5A of the Road Traffic Act 1988. Although it could be argued that an off road motorbike is not by its nature, intended or adapted to be used on the road, the fact that the rider used it as such, using it as such a vehicle, albeit unlawfully, would in our opinion, fall within the remit of the offence under this section. Various cases have considered this matter, including 'toy' scooters which were all held to be a motor vehicle.

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