Although the question in the title appears as an oxymoron, the answer is still YES.
The seat of the matter is given by art. 111 of GEO 195/2002, according to which:
(1) The driver’s license or its substitute proof is retained in the following cases:
b) when its owner has committed one of the crimes provided for in art. 334, art. 335 para. (2), art. 336, 337, art. 338 para. (1) and in art. 339 para. (2), (3) and (4) of the Criminal Code;
(3) In the situations provided for in para. (1) lit. a) and d), in art. 102 para. (3) lit. a) and in art. 102 para. (4) of this emergency ordinance, as well as in those mentioned in art. 334 para. (2) and (4), art. 335 para. (2), art. 336, 337, art. 338 para. (1), art. 339 para. (2), (3) and (4) of the Criminal Code, the replacement proof of the driver’s license is issued without the right to drive.
Therefore, in the situation where the driver was detected in traffic, either with a blood alcohol concentration higher than 0.8g/l, or under the influence of psychoactive substances, the right to drive is suspended and the substitute proof without the right is issued of circulation.
In the case of alcohol, the situation is clear, in the sense that devices (breathalyzers) are used for detection that measure the alcohol concentration in exhaled air, the air-blood ratio being approximately ½. If the alcohol test indicates a value below 0.4 g/l in the exhaled air, the collection of biological samples is optional, and its refusal leads to the application of a main contraventional sanction, in the form of a fine and complementary, in the form of suspension of the exercise of the right to drive on a period of 90 days.
However, if the breathalyzer shows a value of over 0.4 g/l in the exhaled air, the taking of biological samples becomes mandatory, the refusal to take biological samples being automatically classified as a crime.
Thus, in the event that the driver was detected in traffic under the influence of alcohol, the tests are quite effective, there generally not being too many problems or errors that lead to questionable legal situations.
The legal and procedural complications encountered in practice appear in the case of the driver, who was tested with drugtest devices (to determine the presence of psychoactive substances in saliva). The Traffic Police uses the so-called drug tests to detect people driving under the influence of psychoactive substances.
Practically, when stopped in traffic, samples are taken from the driver’s saliva. After sampling, these samples are placed in a container with reagents which, depending on the reaction, indicate positive or negative.
Here is a notable difference between alcohol and psychoactive substances, if in the case of alcohol we were discussing various thresholds above, in the case of psychoactive substances they no longer exist, the only possible result being positive or negative.
As a result, in practice, we have encountered many cases where drug tests have given false positive results, probably due to poor quality reagents or due to substances in the human body that are present in drinks and foods, and in which the reagents are sensitive, although the psychoactive substance is not present in the human body.
If the drug test shows a positive result, it can still be a false positive, a hypothesis in which the act is not typical, but the driver is taken to the nearest Emergency Department for the collection of biological samples.
Practically, the difference between a positive result and a false positive result will be determined by the results of taking biological samples (from blood).
Obtaining the result of these collected biological samples takes a long time (several months). However, during this period, theoretically, the driver is issued a proof without the right to drive, given the positive result of the drug test.
What happens in the case of the driver who travels on the same day or as soon as possible to a medical unit, even a private one, and following the collection of biological samples (usually urine) the result is negative? Does this negative result lead to the confirmation of the false positive result and the cancellation of the positive result as a result of the sampling in traffic?
Based on the legal provisions presented above, the positive result of the drug test can only be canceled as a result of waiting and obtaining (several months) the result from the Emergency Department.
However, in the cases that our law firm has had, by submitting the test results (usually urine) obtained quickly from medical units, even private ones, together with a supporting memorandum well-founded in law, we have obtained the issuance by the Prosecutor of an Ordinance to extend the right to drive, although the proof initially issued by the Traffic Police was without the right to drive!
The motivation invoked by the Prosecutor when issuing this extension Ordinance was that, indeed, in practice there are many cases of false positive results “and as a result of the evidence administered until that moment, the evidence administered is not sufficiently credible to affect benefit of the doubt”.
In conclusion, the substitute proof without the right to drive can lead to the extension of the right to drive, if the specialized legal assistance services are oriented towards the interpretation of legal texts, in favor of the clients, which is a principle of the GIDRO&GIDRO SCA law firm.
Av. Pop Vlad-Liviu