Analyses the application of Article 27(1)(c) of Decree-Law no. 291/2007, of 21 August, with regard to the detection of psychotropic substances in the event of an accident, standardising case law.
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The system of compulsory motor vehicle civil liability insurance was approved by Decree-Law 291/2007 of 21 August.
According to the provisions of Article 27(1)(c) of this law, ‘Once the compensation has been paid, the insurance company only has a right of recourse (...) against the driver, when the latter has caused the accident and is driving with a blood alcohol level higher than legally permitted, or has been found to have consumed narcotics or other drugs or toxic products’.
In relation to the Highway Code, article 81(5) of Decree-Law 114/94, of 3rd May, states that ‘A driver is considered to be under the influence of psychotropic substances if, after an examination carried out under the terms of this Code and complementary legislation, he is considered to be so in a medical or expert report’, with Law 18/2007, of 17th May, and Ministerial Order 902-B/2007, of 13th April, being relevant here.
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In the case in question, a road accident occurred and the blood tests carried out on the person responsible for the accident detected the psychotropic substance THC.
The question is essentially whether, for the purposes of the insurer's right of recourse, it is sufficient to verify the existence of substances, or whether it is necessary to prove the ‘state of influence’ by the consumption of such a substance, with decisions handed down by the Higher Courts in both directions.
In short, and in accordance with the view advocated in the aforementioned judgement, ‘the mere detection of narcotic substances in a blood test is not sufficient to conclude that there has been an actual impairment of physical or mental capacity and aptitude, which can only be done by means of a medical and/or expert report.’
(bold ours).
Since it is perfectly possible to detect the psychotropic substance THC (or others) without them exerting any alteration to the subject's faculties.
In fact, as the Judges explained, ‘although the psychotropic substance THC was detected in the driver's blood test, in the amount of 0.8 ng/ml, it has not been shown that the driver was driving in a “state of influence” due to the consumption of that psychotropic substance (remembering here in particular that science states that ’values below 2 ng/mL indicate absence of influence [. ...] For concentrations above 2 ng/mL, impairment was observed in the performance of some, but not all, driving-related tasks"), which, once again, can only be demonstrated through medical examination and/or expertise’
As such, and transcribing the aforementioned ruling, ‘(...) immediately excluding the analysis of a possible state of influence by the detection of 4. 3 ng/ml of THC-COOH in the blood test, since this is not an active substance from the pharmacological point of view, in any quantity whatsoever, and it cannot be concluded that the car was driven under the influence of cannabinoids, even if the presence of 0.8 ng/ml of THC (active substance) was detected in the driver's blood, the truth is that there is no medical and/or expert examination in the case file which shows that the defendant was driving, on the date and place of the accident, under the influence of psychotropic substances or that the value detected in the blood test was capable, in the light of existing scientific knowledge on the matter, of diminishing the defendant's physical and mental capacity to drive, which would be decisive for the exercise of the right of recourse in the light of art. 27(1)(c) of Decree-Law 291/2007 of 21 August.
As can be seen from what has been written above, the demonstration of such a ‘state of influence’ was essential to the success of this action for recourse, and it was the insurer's responsibility to demonstrate that the insured driver caused the accident and that, on the date of the accident, he was consuming a narcotic substance with characteristics, properties and in a quantity likely to influence his physical or mental capacity and aptitude, which, under the terms of the legislation in force, could only be done through a medical and/or expert examination and subsequent medical and/or expert demonstration to that effect."
As a result, case law has been standardised to the effect that
‘Under the terms of Article 27(1)(c) of Decree-Law 291/2007 of 21 August, in order to recognise the right of return to the insurer who paid the injured party compensation, the insurer must allege and prove that the driver was driving under the influence of psychotropic substances, reducing the driver's physical and mental aptitude to carry out the activity of driving in safe conditions, and that this ‘state of influence’ must be demonstrated through a medical and/or expert examination.’
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Summary:
‘Pursuant to Article 27(1)(c) of Decree-Law no. 291/2007 of 21 August, in order for the right of recourse to be recognised to the insurer that satisfied the compensation to the injured party, the insurer will have to allege and prove that the driver was driving under the influence of psychotropic substances, diminishing the driver's physical and mental aptitude to carry out the activity of driving in safe conditions, and such ‘state of influence’ must be demonstrated by means of a medical and/or expert examination.’
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