The police have admitted that officers have been drug testing drivers without having the powers to do so.

Under the Road Traffic Act 1985, the police have powers to stop motorists and, in certain circumstances, obtain a breath test and/or, if there are grounds, arrest them for being under the influence of drugs.

Officers were seen drug testing motorists with swab kits from January 2. According to a Manx advocate who wished to remain anonymous, a new amendment, part two of the Road Traffic Legislation (Amendment) Act 2021, was due to come into force but wasn’t law at that time.

The advocate said: ’The new amendment brings into force prescribed maximum levels. The levels set would appear to be a zero tolerance approach for the maximum legal limits of drugs that are mostly associated with illegal use, cannabis, cocaine etc.’

It can be found in the section ’driving or being in charge of a mechanically propelled vehicle with concentration of specified controlled drug above specified limit, or the power to administer a preliminary drug test at the roadside’.

However, the amendments to this law were still to come into force at the time police were drug testing on the roadside, so a motorist could be stopped but would not be required to give a preliminary drug sample or be convicted solely on the level of a specified drug in their system being above a prescribed limit.

Officers were operating in early January under the assumption that the amendment had already been introduced. In fact, this would have only become law when the Department of Infrastructure implemented the act, said the advocate.

Once the amendments are implemented, even a small level of an illegal drug in your system will lead to an automatic minimum two-year ban - 12 months longer than in England and Wales.

A spokesperson from the police said: ’Due to an administrative delay, the legislation which introduced the new powers was not enacted on the intended date.

’This has now been rectified and the powers are correctly in place.’

Though police did not have the powers described in the amendment, it did not affect the existing powers and the police could still stop motorists in certain circumstances.

Police can stop a motorist if they have reasonable suspicion they may be under the influence of drugs.

Unlike in the UK, there was no legislation setting the maximum permitted levels of drugs allowed in the body at the time of driving.

’We do however have a specific offence under Section 5A Road Traffic Act 1985, driving or being in charge of vehicle with alcohol above prescribed limit and the level set at 35 micrograms per 100ml of breath,’ said the advocate.

They added: ’Whilst prosecutions under the new legislation cannot happen until the legislation is in force, issues of tortious liability will arise for the police where they have stopped a motorist but then a preliminary drug test was undertaken, which they failed, and the officer has then arrested the motorist, detained them and required them to give a blood sample solely on the basis of the road side test.

’As the police had no power to request a motorist to undertake the preliminary drug test or to advise them that a failure to do so would be an offence, anything flowing from this could be a tortious act and actionable in the civil court.

’However, if the stop was made reasonably under existing powers and there were then other grounds for the constable to suspect that an offence under Sections 5 or 5A of the Road Traffic Act 1985 was being committed apart from the preliminary drug test, then any evidence gathered to support the charging of those offences could be admissible and charges brought under the existing Road Traffic Act.

’I would anticipate that there are motorists on bail for arrests before the error came to light but each case will be fact specific and any challenges to the evidence would be on a case by case basis.’