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What It Means for Drug Driving Offences
Police in England have today announced the trial of what is believed to be the world’s first roadside breathalyser designed specifically to detect nitrous oxide, more commonly known as “laughing gas”.
For anyone concerned about drug driving investigations, this represents a significant development and could mark a turning point in how these cases are investigated and prosecuted.
Nitrous Oxide Breathalyser Trial – What has been announced?
Two police forces, Hampshire & Isle of Wight Constabulary and Thames Valley Police, are now trialling a new portable breathalyser capable of detecting recent nitrous oxide use in drivers.
The device, developed following research in the Netherlands, works in a similar way to an alcohol breathalyser. A driver breathes into it at the roadside and results are produced within minutes.
Importantly, it is said to be capable of detecting nitrous oxide use for up to around two hours after inhalation. This is significant because, until now, there has been no reliable roadside method for proving recent use of nitrous oxide, even where impairment is strongly suspected.
What is Nitrous Oxide?
Nitrous oxide has become an increasing concern for police and prosecutors. While it has legitimate uses in medicine and industry, it is also misused recreationally for its short-lived euphoric effects.
Since November 2023, nitrous oxide has been classified as a Class C drug, making possession for wrongful inhalation a criminal offence.
Why is this important for Drug Driving?
Police have identified a growing trend of drivers using the substance behind the wheel, particularly among younger drivers.
The difficulty has always been proof. Unlike alcohol or many other drugs, nitrous oxide leaves the body very quickly, meaning that by the time a suspect reaches a police station for blood testing, evidence may have disappeared entirely. This has created a significant evidential gap in drug driving cases.
What will happen if I test positive for Nitrous Oxide after driving?
Nitrous oxide is not a drug with a specified limit as per the Drug Driving (Specified Limits) (England and Wales) Regulations 2014.
Section 2 of The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 specifies the controlled drugs for the purposes of a drug driving offence and sets the specified limits. Nitrous Oxide is not contained within this list.
If you are do ‘test positive’ for nitrous oxide, the prosecution could proceed with a charge of driving whilst unfit through drugs, as long as they could prove a positive correlation between the ingestion of the nitrous oxide and the defendant’s unfitness to drive.
This new device could make it easier for the police to pursue cases under the “unfit through drugs” provisions. It would realistically have to receive some form of Home Office approval. At present this is simply a roadside breath test device and not an evidential test device
If rolled out nationally, this technology could lead to:
- Increased roadside testing for drug driving
- A rise in nitrous oxide-related prosecutions
- Greater scrutiny of drivers suspected of impairment
- More complex evidential challenges in court
It may also act as a deterrent. As with drink driving, the knowledge that roadside testing is possible often changes behaviour.
What should drivers be aware of?
The key message is clear: driving after using nitrous oxide is likely to lead to serious legal consequences. The substance can impair reaction times, judgement and awareness, and in some cases can cause dizziness, loss of consciousness or worse.
With the introduction of this new breath test, police may soon have an additional and powerful evidential tool.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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