Can you vape and drive?

Tell someone with a motoring law background that the theme for an article is “smoke and mirrors” and the first thing they think of is “the vape smoke in the rear-view mirrors” and the offence of driving without due care and attention.

Although vaping or smoking while driving is not itself illegal (unless you are smoking with a child under the age of 18 in a vehicle that is enclosed wholly or partially by roof) there are potential criminal implications. Rule 148 of the Highway Code says that drivers should “avoid distractions” when driving, with smoking listed specifically. Vape clouds have been shown to impair sight in a similar way to glare from the sun, which we all know can make for hazardous driving conditions and potentially contribute to an accident. So, if you’re vaping while driving (amounting to a distraction) and/or a vape cloud hinders your ability to fully control your vehicle correctly, everything could go up in smoke. Literally.

If you are not properly in control of your vehicle due to vaping, you could be issued with a fixed penalty notice for driving without due care or attention (careless driving) resulting in a financial penalty of around £100 - depending on the Police force issuing the penalty - and three penalty points endorsed on your driving licence. You could even be issued with a summons to attend court, depending on your driving record and/or the seriousness of the alleged offence. If you are summoned to court for careless driving, the prosecution must show that your driving fell below the minimum standard expected of a competent and careful driver in all of the circumstances. If you plead guilty, or are convicted, the maximum sentence is an unlimited financial penalty along with up to nine penalty points or a discretionary period of disqualification from driving.

Things get a little more complicated if the penalty points for careless driving amount to 12 or more within three years. If that happens, then the court must disqualify you from driving for a minimum period of six months under the ‘totting up’ provisions, unless there are grounds to mitigate the normal consequences.

If you are facing a ‘totting up’ disqualification, the court can consider what is known as ‘exceptional hardship’ in mitigatation. The Court may allow you to continue driving, even with 12 penalty points on your licence or reduce the mandatory minimum length of your disqualification. Exceptional hardship is when a totting up ban would cause suffering beyond what is considered reasonable (predominantly to third parties). It has to be more than merely an inconvenience and is only considered when there are no other alternatives. If grounds for exceptional hardship are established they will be recorded on the court record. However, those same grounds cannot be relied upon should you reoffend within the next three years.

And if you’re a new driver who has only recently passed your test, things can be even worse. If you’ve had your driving licence for two years or less, accumulating six penalty points will result in your driving licence being revoked. This means you will have to apply for a new provisional licence and then re-sit both the theory and practical driving tests to regain your licence. The six penalty points that led to your licence being revoked will remain on your licence for three years from the date of the offence.

Looking at the worst case scenario, what happens if a vape cloud affects your ability to drive and your inattention causes someone to be killed? The offence of causing death by careless or inconsiderate driving has a maximum sentence of five years imprisonment and a disqualification from driving for a minimum of 12 months (with a discretionary retest). If, however, the court does not consider a disqualification to be appropriate in the circumstances,  you could be given between nine and 11 penalty points instead.

Given the potential implications, it poses the question as to whether you really need, or indeed should,  vape whilst behind the wheel of a vehicle.