There has been a widespread push across Australia to legalise marijuana for medicinal purposes – particularly after the success of similar moves in the United States and other countries.
But a problem which has long plagued drug experts is how Australia’s tough roadside drug testing laws will happily co-exist with the use of medicinal marijuana.
Towards the end of last year, NSW Police announced a significant increase in roadside drug testing. Since then, the number of drivers charged for drug driving has doubled – with many of those charged adamant they last took drugs several days before driving.
To be found guilty of drug driving, police simply have to prove that any amount of drugs were present in a person’s system at the time of driving – there does not need to be a certain minimum reading (like drink driving) and it does not matter whether or not the driver was actually affected by the drugs.
Now, the case of a man charged with drug driving after using medical marijuana has garnered attention, with many saying it shows just how unfair our roadside drug testing system is.
Medical Marijuana User Before the Courts
Klaus Halper was charged with drug driving after testing positive to cannabis while driving near Bega on the 26th of March last year.
In court, Mr Halper said he had last used cannabis four days previously. He also presented evidence that he used marijuana as a natural painkiller to help him manage pain associated with a car accident some years ago. He had tried conventional pain medications which had no effect.
Despite this, the Local Court Magistrate convicted and fined him $400 for the offence. He also imposed the minimum disqualification period of 3 months.
Mr Halper appealed to the District Court, arguing that the penalty was too severe. Judge Cogswell granted his appeal and overturned the conviction, instead asking that he be placed on a section 10 good behaviour bond (now conditional release order without conviction) for 6 months.
This meant that Mr Halper was able to continue driving, avoided having to pay a fine, and, most importantly, did not incur a conviction on his criminal record for the offence.
However, a non conviction order still means Mr Halper was guilty of the offence.
The outcome is in contrast to the case of Joseph Carrall, who was found ‘not guilty’ of the same offence after driving nine days after consuming cannabis. Mr Carrall successfully argued the defence of ‘honest and reasonable mistake,’ contending that he only drove after police personally assured him that he would not test positive for cannabis more than a week after consuming the drug.
Courts are already feeling the impact of the increase in roadside drug testing – with dozens of drivers fronting courts across NSW every day.
In many instances, those charged with drug driving are adamant they last took cannabis several days before driving. But police contend cannabis is only detectable for 12 hours, with Assistant Commissioner John Hartley, the Commander of Traffic and Highway Patrol, telling the media that:
‘Our pharmacologists tell us that for cannabis active for THC in saliva about 12 hours is the maximum it will be in their system and the maximum we would be getting a positive result on.’
However, police have recently been equipped with a new drug testing device called the Draeger DrugTest 5000. The device’s manufacturers say it can detect traces of cannabis up to 30 hours after consumption – long after a person stops being affected.
This has left many members of the public confused about how long they should wait before driving after using cannabis.
Speaking with the media last week, criminal barrister Greg Barns said it was up to police to provide members of the public with information about how drug testing works, and how long they should wait after using drugs before driving:
‘It is patently unfair for someone who has driven impeccably to lose their licence simply because they have a trace of a substance that the government makes illegal, in their system.
To simply say do not use drugs is absurd and ignores reality.’
But police are undeterred, claiming that a zero tolerance approach to drug driving is necessary to reduce road fatalities – with Minister for Roads Duncan Gay saying:
‘My advice is don’t take illegal drugs and if you do, be responsible and conservative with your decision of when it is safe to drive to avoid the consequences.’
It seems that the conflicting information about how long cannabis is detectable, together with the absence of minimum THC limits, will continue to cause unfairness without promoting road safety.