In this article, we will proceed to a brief analysis of the impact that Decision No. 25/2025 of the High Court of Cassation and Justice, the panel for resolving a question of law in criminal matters, will have in the reference practice, pronounced on January 27, 2025. Through this Decision, it was held that in order to be an incident, the crime of driving a vehicle under the influence of psychoactive substances, the substance must affect the perpetrator's ability to drive.
In recent years, the Romanian legislator's perspective on sanctioning the crime of driving a vehicle under the influence of alcohol or other substances has changed significantly, amid the increase in cases in which the commission of this criminal act resulted in human losses and considerable material damage.
The most recent intervention in the content of this offense was brought by the High Court of Cassation and Justice through a preliminary ruling to resolve a legal issue. Thus, by Decision no. 25/2025 in file no. 620/1/2024, the supreme court established that: " In the case of the offense of driving a vehicle under the influence of psychoactive substances, provided for by art. 336 paragraph (2) of the Criminal Code, in order to achieve the essential condition attached to the material element of the objective side, that the defendant was under the influence of psychoactive substances, it is necessary to establish both the presence of the psychoactive substance in the biological evidence, as well as its ability to determine the impairment of the perpetrator's ability to drive."
First of all, the solution is due to the diversity of problems created by understanding the meaning of the phrase "under the influence of psychoactive substances" in art. 336 paragraph (2) of the Criminal Code. This was interpreted in the sense that whenever, following the collection of biological samples, the analyses indicated the presence of substances in the body, the act represented the crime [1] to which we refer [2] . Of course, the collection was determined by a positive result, following the testing of drivers with " Drugtest" devices .
At the same time, among the reasons that underpinned the most recent decision of the supreme court are the multiple cases of false-positive results , established by the certified means of the police bodies, but also the presence of substances in the drivers' bodies, although the actual consumption had occurred several days before they drove, consumption which may have occurred in a country where it is legal, such as the Netherlands, Uruguay or Luxembourg.
Despite this interpretation of the phrase previously stated, some courts have pronounced the acquittal, based on the conclusions of toxicological expert reports which, for example, detected in the biological samples only an inactive metabolite of cannabis (THC-COOH), or even a low value of the metabolite detected in the blood. Therefore, another cause that led to the pronouncement of Decision no. 25/2025 of the ICCJ was the contradictory jurisprudence on the matter .
Secondly, a gap in the legal text is that it does not specify the minimum quantity of psychoactive substance that should be detected in the driver's body to attract criminal liability , as is provided for in the case of the offense of driving under the influence of alcohol, where in order for the act to correspond to the pattern of art. 336 of the Criminal Code, it is necessary that the alcoholic absorption be over 0.80 g/l of pure alcohol in the blood. Otherwise, the act only attracts contraventional liability, representing a contravention.
The essential change brought about by the recent decision, despite the absence of motivation at this time, consists in the reassessment of the importance of the evidence represented by the forensic medical expertise report, which will establish to what extent the quantity of the psychoactive substance in the body determines the impairment of the perpetrator's ability to drive . It should be emphasized that such an approach does not lead to the conclusion that driving under the influence of psychoactive substances will be legal, but only that an assessment of each case by the judicial bodies is required , in order to order the referral to trial or subsequent conviction based on the expertise that will assess the perpetrator's condition. Thus, it regulates the possibility of drivers to drive even if they are under medication, but in this way, a distinction is also made between drivers who ingested a tiny amount of the substance a few days ago (possibly in a country where consumption is legal) and those who ingested a large amount that could endanger both pedestrians and other traffic participants
We also specify that there have been convictions ordered in the absence of an expert report, an aspect that we do not see as being in accordance with the right to a fair trial, a principle also provided for by Article 6 of the European Convention on Human Rights, since evidence in criminal proceedings should be administered both in favor and against the defendant, so that the court's decision reflects the truth regarding the factual situation in the case.
So, in the future, in order to comply with the recent decision of the supreme court, judicial bodies will be obliged to order the performance of forensic examinations if drivers are found to be positive following testing with the "Drugtest" devices available to the Romanian police.
Subsequently, the prosecutor will have to order either the case to be dismissed or sent to trial, based on the evaluation of all the evidence provided. In this way, a judicial individualization of the sanction to be applied to the perpetrator will also be possible.
At the same time, we want to bring to your attention one of the shortcomings of these expert reports, which is that, most of the time, given the small number of experts and the high workload they have, the duration of such a report can be very long, increasing the risk of the facts that are the subject of the case becoming statute-barred.
We cannot help but notice that the decision rendered does not offer a concrete solution for establishing the extent to which the psychoactive substance affects the driving ability of the perpetrator, but rather opens a path to solving a problem that has arisen for a long time, but which has been interpreted ad litteram, so as not to lead to a non-uniform practice. Going on the premise of a total ban on driving under the influence of any substances that could be detected by the testing device, the objective factual situation was ignored which revealed the preservation of the spatial-temporal perception capacities of traffic participants.
From the point of view of immediate prosecution, the crime of driving a vehicle under the influence of psychoactive substances will remain a dangerous crime, but the danger will be assessed in detail , as it is necessary for it to exist. As such, the driver will have to represent a danger to other people involved in traffic.
In conclusion, the Decision of the High Court of Cassation and Justice, although correct in substance, will have to be supplemented in the future by concrete interventions of the legislator, which would establish precisely a way of assessing the impairment of the ability to drive in order to commit the offense provided for in art. 336 paragraph (2) of the Criminal Code. One of these ways could be to establish a minimum concentration threshold of the substance that would attract criminal liability, similar to the offense provided for in the same article, but in paragraph (1). Another way would consist in the obligation to have a forensic examination, which would establish whether the ingested substance was capable of diminishing the driver's capacity. This last option could be thought of similarly to art. 184 of the Code of Criminal Procedure. [3]
