Highway Code, why could the reform be unconstitutional?

The Chamber recently approved the text of the reform of the Highway Code, which is now being examined by the Senate.
Some rules immediately gave rise to some doubts among various jurists, especially in light of the sentence issued by the Constitutional Court just a few days ago.
In particular, it concerns sentence no.
52 of 28 March 2024, with which the Court declared a sanction of the Highway Code unconstitutional, obviously the one currently in force.
The case dealt with by the judges concerned, in detail, the additional administrative sanction of revocation of the license following driving with a vehicle subjected to administrative detention.
According to the judges, the sanction must not be applied as a rule, but rather according to the seriousness of the fact, so as not to undermine the principle of proportionality of penalties.
Apparently, nothing related to the new text on road rules, which in fact does not apply any changes to the violation for driving with a car subjected to administrative detention.
What is interesting about the reform – regarding its presumed partial unconstitutionality – is instead precisely the principle of proportionality of sanctions, which may be dubious.
Is the reform of the Highway Code unconstitutional? At the moment, the reform of the Highway Code cannot be defined as unconstitutional, as the latter has not yet even been approved and entered into force, much less analyzed by the Constitutional Court.
Despite this, it is clear that some passages of the text are in open contrast with the prevailing orientation of jurisprudence on the same topic.
Among the various innovations at stake, what is most controversial are those which provide for punishing driving under the influence of narcotic substances by merely verifying their presence in the tests, regardless of the driver's state of impairment.
This ban aims to increase road safety, acting as a strong deterrent to driving in even potentially less than optimal conditions.
A more than just intent, which could however prove harmful and prejudicial.
In fact, the sole positivity to the presence of a certain substance in the driver's organism does not necessarily determine effects on the subject's cognitive and motor abilities, not even on his reflexes or inhibitions.
Often, the Court of Cassation has reiterated this concept, determining the driver's responsibility according to the causal link between the cause of the road accident and the state of alteration caused by the intake of drugs.
Be careful not to confuse the concept of a state of alteration with the subjective and not entirely predictable response of every human being to the intake of a certain quantity of psychotropic or alcoholic substances, which are also influenced by considerable variable factors.
No one, least of all the Court of Cassation, allows those who "hold well" to drive under the influence of substances.
read also Highway Code Reform, the most important innovations It is rather necessary to consider at a technical, therefore medical-scientific, level the parameters of alteration, the concentration of the substances, the type of test carried out, the time elapsed since intake and so on.
The evaluation, in short, must be done exclusively objectively.
But let's now come to some practical examples, undoubtedly clarifying.
THC (the main active ingredient of cannabis) can leave traces in blood tests for over 14 days after consumption, while in saliva tests for an average of 72 hours, which can very well increase to longer times in the case of habitual consumption.
The psychoactive effect tends to wear off in a matter of hours, while the inability to drive (slowed reflexes, concentration problems and so on) lasts for up to 24 hours, but only if there are certain favorable conditions.
Now, remembering that in Italy it is legal to take cannabis for therapeutic purposes and that patients are normally prohibited from driving for up to 24 hours after taking it, what does the new Highway Code rule mean? The latter, we remember, intends to sanction the driver for the positive saliva test carried out on site by the agents or, in case of impossibility, by the blood test requested from competent structures.
Depending on the case, the driver would risk having his license revoked for having taken cannabis for therapeutic purposes even 3 days before, without being visibly and medically impaired.
From this perspective it is clear that the law should at least be revised, perhaps setting more specific parameters and conditions to avoid dangerous generalizations.
read also Cannabis legalization, Italy should do like Germany: the results of the survey