Drugged Driving: Positive Test Alone Is Not Enough. Parma Judge Reopens Debate on Article 187

Judge rules proof of “state of impairment” is necessary. The recent reform of the Highway Code, which removed this requirement, is once again under scrutiny by the Constitutional Court.

A simple positive drug test is not sufficient to secure a conviction for driving under the influence of drugs. This emerges from a significant ruling issued on September 26 by the GIP (Judge for Preliminary Investigations) at the Court of Parma, which rejected a prosecutor’s request for a conviction and has put the spotlight back on one of the most debated articles of the recent Highway Code reform.

The case in question involved a driver who tested positive for cannabinoids. Despite the test results, the judge dismissed the prosecution’s request, highlighting a key element: the case file lacked any proof that the suspect was in an actual “state of psycho-physical impairment” at the exact time they were driving.

The Parma judge’s decision effectively dismantles the framework on which the new Article 187 of the Highway Code is based. The legislative reform had, in fact, eliminated the specific reference to a concomitant state of impairment, introducing wording that appeared to punish the mere act of getting behind the wheel “after having taken” psychotropic substances.

The declared objective of the reform was to tighten penalties, targeting even those who, despite having traces of substances in their system, might appear perfectly lucid at the time of the check.

However, the Parma ruling raises a crucial question, one already raised by other courts: can a citizen be criminally punished for an action (consumption, which may have occurred hours or even days earlier) that is disconnected from any actual danger posed on the road (the impairment while driving)?

This ruling is not an isolated case. It falls within a context of deep legal uncertainty that has already led the Courts of Pordenone, Macerata, and Siena to take a further step. These judges, doubting the rule’s consistency with constitutional principles, have formally raised questions of constitutional legitimacy.

The ball is now in the Constitutional Court’s court. It will be called upon to decide if the new wording of Article 187 is compatible with the principles of offensività (the harm principle, meaning the law must punish actual harm or concrete danger) and of reasonableness. Until then, the conflict between the legislator’s intent and the judiciary’s interpretation is set to continue in the courtrooms.