Category Archives:Drug Driving

A driver who was prescribed medicinal cannabis oil for his multiple sclerosis has had his drug-driving charge dismissed by an Adelaide Magistrate.

Brenton Peters is one of over 3000 Australians legally prescribed cannabis oil, but was facing significant penalties for driving with a detectable amount of THC in system.

In a significant decision, Magistrate Susan O’Connor dismissed Peter’s case citing the fact that there was no indication he was impaired or a danger to other drivers.

Here’s what the decision means and why people are still calling for reform of drug-driving laws in South Australia.

Drug Driving Laws

Like in NSW, it is an offence in South Australia to drive or attempt to drive a motor vehicle whilst a prescribed drug is present in your oral fluid or blood.

Mr Peters was pulled over by police and undertook a saliva drug test which came back with a positive result for THC, the psychoactive component in cannabis.

Cannabis is a prescribed drug under the law, regardless of whether it has been prescribed for medical reasons.

Penalties include a criminal record, licence disqualification and fines.

Offences which relate to legal, prescription drugs in South Australia focus on penalising use where someone is “incapable of exercising effective control of the vehicle” rather than having a detectable amount.

Advocates for medicinal cannabis reform have criticised current laws for being unfairly discriminatory, particularly given different rules apply to other prescription drugs

Medicinal cannabis users have been warned against driving for at least 48 hours after consuming a cannabis product to avoid a positive saliva test.

However, in one infamous NSW drug-driving case, THC was detected via a saliva test of a driver who consumed cannabis a week prior.

Clearly, the current laws provide little certainty for medicinal cannabis users.

Dismissing the Charge

South Australian legal commentators say that Magistrate O’Connor found Mr Peters guilty of the offence, but then dismissed the charge without proceeding to a criminal conviction due to the circumstances of the case, as well as the defendant’s other personal factors.

The South Australian law is similar to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 in New South Wales, which allows a magistrate to exercise his or her discretion to dismiss a charge without recording a conviction even if a person is technically guilty.

The factors relevant to a determination under section 10(1)(a) in NSW are:

• the person’s character, antecedents, age, health and mental condition,
• the trivial nature of the offence,
• the extenuating circumstances in which the offence was committed, and
• any other matter that the court thinks proper to consider.

Magistrate O’Connor warned Mr Peters that he will receive a criminal conviction if he drives with cannabis in his system in the future.

Need for Reform

Given the limitations of current drug-driving laws for medicinal cannabis users, many people are calling for reform.

In 2017, an attempt was made by South Australian Dignity Party MLC Kelly Vincent to reform laws for medicinal cannabis users to allow a defence to existing drug-driving offences.  However, this part of the amendment failed to pass through both houses.

“As with other legal medications, [medicinal cannabis] users should be able to be assessed against their personal capacity to drive” Ms Vincent told Sydney Criminal Lawyers^® in 2017.

There has been a steady increase in patients approved for medicinal cannabis in Australia, with the TGA granted 25,182 applications from doctors to prescribe cannabis in 2019. This means a large number of patients are currently at risk under existing drug-driving laws.

Alternative models for drug driving testing are available. For example, Norway has been assessing drug levels in a driver’s system (as opposed to any detectable amount) since 2012. This ‘drug level’ approach was also implemented in the Netherlands in 2017.

This recent case follows a number of positive decisions in regarding to medicinal cannabis charges in South Australia.

Jenny Hallam, who was facing prison time for providing chronically ill patients with the cannabis oil free of charge, was given a two-year good behaviour bond last year by SA District Court Judge Rauf Soulio.

Clearly many people, including members of the judiciary, feel that it is time for cannabis reform.

On 6 June, the ACT Legislative Assembly Standing Committee on Health tabled its report on Labor backbencher Michael Pettersson’s private member’s bill to legalise the personal possession and use of cannabis in the capital territory.

And the committee outlined that it overwhelmingly supports the legislation, subject to a number of recommendations, the ninth of which being that the “ACT government collaborates with ACT Policing to adopt a cannabis drug driving test that determines impairment”.

The ACT has a similar method of roadside drug testing to the highly derided NSW regime. In this state, NSW police test drivers for the mere presence of a select four drugs, one of which is tetrahydrocannabinol (THC): the psychoactive component of the cannabis plant.

Roadside testing does little for traffic safety, as officers have no way of gauging whether a driver is actually intoxicated. But, it does act as a backdoor method of penalising people for drug use. And as THC remains in the body for a long time, penalties can relate to consumption weeks prior.

But, over in the States, where cannabis use is increasingly the norm, authorities aren’t concerned with penalising people over what’s an accessible legal medicine in 33 states, while in 10 states and the District of Columbia, it’s a lawful recreational drug that a quarter of the population can use.

Instead, the US government and policing agencies are now focusing on how THC affects an individual’s driving capacity, and whether these effects make drivers more prone to causing traffic accidents.

Two very different drugs

“That marijuana usage increases a driver’s risk of crashing is not clearly established,” wrote David Randall Peterman, a US analyst in transportation policy. Some studies, he found, estimate “a small increase” in the risk of crashing, while others “estimate little or no increase in the likelihood”.

Mr Peterman detailed his findings in the Congressional Research Service report Marijuana Use and Highway Safety, which was tabled in US Congress on 14 May this year. The Congress-commissioned report provides a summary of relevant research into driving after cannabis use.

The analyst points out that as the legal use of cannabis grows, so too do concerns over its impact on road safety in a similar way to alcohol. Although, he determines that the differences in the effects of the two drugs, may challenge the assumption of simply treating cannabis and drink driving the same.

While alcohol is a depressant absorbed into the blood and metabolised quickly, with almost no traces within 24 hours, THC is a stimulant that’s metabolised rapidly as well, however it’s stored in the fat cells, so traces can still be present several weeks after consumption.

Difficult to pin down

As of last month, 18 US states have enacted laws that test for specified levels of THC in a driver’s body. If these are exceeded it constitutes driver impairment and is therefore unlawful. This is similar in the way that driving with 0.08 blood alcohol content or over is illegal in the States.

However, despite these laws, Peterman finds that determining THC impairment levels is not as straightforward as it is with alcohol. While the psychoactive part of THC drops dramatically after an hour of use, due to the way it’s metabolised the non-psychoactive traces remain for weeks.

Other reasons why the effects of THC on driving performance are relatively unknown is the until recently complete illegality of the drug, the fluctuating THC potency between plants, as well as the different effects it can produce through various methods of ingestion.

And the results from studies on the association between cannabis use and crash risk are also “inconsistent”. Peterman cites one study that found the increased risk of crashing after its use was 1.83 times that of an unimpaired driver, while another study found no association at all.

Safer than alcohol

A 2017 National Highway Traffic Safety Administration driving simulator study found that cannabis-dosed drivers took fewer risks than when they weren’t under the influence of the drug. And it was surmised that drivers conscious of their state drove more carefully to compensate.

The NHTSA researchers also found that drivers who had been drinking “tended to drive faster than the speed limit”, drove closer to the car in front of them, and in general, took more risks than when they weren’t under the effects of alcohol.

Although, a 2017 National Academy of Science report and a 2018 National Institutes of Health study both found that cannabis use increased the risk of motor vehicle accidents. The NAS report found there was substantial statistical evidence to support the heightened risk.

A standard still eludes

Peterman recommended that the US Congress continues to invest in research on “whether a qualitative standard can be established that correlates the level of THC in a person’s body and the level of impairment”, as well as collecting better data in regard to cannabis and driver use of it.

“The concentration of THC in a person’s blood rises rapidly after consumption, then drops rapidly, within an hour or two,” Peterman concluded towards the end of his report. “Impairing effects appear rapidly, but may remain for some time.”

And due to this, the analyst states that the amount of THC in a person’s body is a poor indicator of impairment, or, indeed, whether the individual has actually used it recently or whether they were “simply exposed to second-hand smoke”.

An unjust drug war tactic

Recently, Lismore Magistrate David Heilpern ruled that Nicole Spackman was not guilty of drug driving, because the THC in her system was due to passive smoking. And in 2016, he found Joseph Carrall innocent of the same charge because he last smoked a joint nine days prior to testing.

Throughout the state, there’s a growing awareness that the NSW roadside drug testing regime is a flawed system that’s unjustly punishing people for cannabis driving whilst they’re not actually under the influence of the drug.

And while the US report sets out that there’s no clear way to determine the effects of cannabis use on driver performance as yet, it’s very clear in the assertion that THC is a substance that stays present in the body for weeks after it no longer has an impairing effect upon an individual.

So, the only conclusion to draw is that regardless of its initial aim, today, roadside drug testing in NSW is being used to penalise a great many drivers for using medicine legally, or having traces of an inactive illegal substance in their body, which in some cases is through no fault of their own.

By Paul Gregoire and Ugur Nedim

The ACT looks set to be the first jurisdiction in the country to legalise recreational cannabis use, which will bring the capital territory into line with ten US states, as well as the entire nations of Canada and Uruguay.

ACT Labor MLA Michael Pettersson introduced the Personal Cannabis Use Bill that legalises the possession of up to 50 grams of cannabis and the home cultivation of up to four plants. This legislation is currently before a parliamentary inquiry, which will table its report by 6 June.

“The committee is undertaking it’s work diligently. And I’m confident that the bill has the in-principle support of a majority of MLAs,” Mr Pettersson told Sydney Criminal Lawyers on Tuesday. “I have watched the testimony so far and am confident we are able to legalise cannabis for personal use.”

The Labor backbencher added that “the inquiry has generated a lot of interest from the public and that’s reflected in the submissions”. And one of these, which is from the ACT Law Society, has raised the issue around cannabis legalisation and the unfair drug driving laws in Canberra.

The association that represents the local legal profession has pointed out that drug driving laws, as they stand in the ACT, aren’t justifiable when it comes to cannabis, as, just like in NSW, police aren’t testing for driver impairment, but rather they test for the mere presence of the drug.

Minute traces in saliva

Section 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act) provides that it’s an offence to drive with “a prescribed drug in a person’s oral fluid or blood”. Under the current regime, ACT police test drivers’ saliva for the presence of a drug, meaning minute traces can read positive.

The dictionary of the Act outlines that there are three prescribed drugs that police are testing for: MDMA, amphetamines and THC, the psychoactive component of cannabis. This is the same as what NSW police were doing until it added cocaine to its testing regime in July last year.

Section 19 of the Act stipulates that a driver has broken the law if they have a “prescribed concentration of alcohol” in their “blood or breath”. This relates to police randomly breath testing drivers for levels of alcohol in their blood scientifically proven to lead to impairment.

The four levels of prescribed alcohol concentration are set out in section 4E of the Act. Most licence holders are permitted to drive with level 1 – up to 0.05 – in their system. But, no individual can drive with the higher levels in their blood. And as the concentrations increase, so too do the penalties.

In its submission to the inquiry, the ACT Law Society put forth that “that drug driving laws should apply in circumstances where a person is impaired and/or intoxicated by cannabis”. And it further recommends that section 20 be amended to reflect this is the case for that drug.

The “harshest” in the land

The ACT Law Society further asserts that the territory has the “harshest drug driving penalties in Australia and that the penalties imposed for committing a drug driving offence are more punitive than those for drink driving”.

An example of this, the Society points out, is that a first time offender “with a small amount of cannabis in their system” – which doesn’t mean they’re impaired – is subject to the same maximum penalty – a fine of $1,500 – as a repeat level 2 drink driving offender.

Further, a first time offender caught with a level of cannabis in their system that may not mean they’re under the influence whatsoever, automatically has their licence disqualified for 3 years, which is the same penalty a first time level 4 drink driving offender receives.

“The penalties imposed for committing a drug driving offence are disproportionate because they do not account for levels of cannabis impairment and intoxication,” the authors of the submission made clear.

Not impaired, but charged

“In our view,” the Society continued, “the higher penalties for committing a drug driving offence may be justifiable in circumstances where a person is impaired and/or intoxicated due to consuming a ‘hard drug’… but not when a person drives with a low-level of cannabis in their body.”

There have been cases in the past where people have gone before the courts under extraordinarily suspect circumstances. A senior ACT public servant tested positive for THC after being pulled over on her motorbike back in 2013.

The woman risked losing her job and the strict national security clearance that came with it. She was eventually given a non-conviction order after spending nine months in court claiming the low levels of THC in her system resulted from some muesli she’d been eating that contained hemp seeds.

And then there was the 2016 NSW Joseph Carrall case. Lismore magistrate David Heilpern found that Carrall was not guilty of drug driving after he’d tested positive for THC in a roadside test, as the man hadn’t smoked any cannabis for nine days prior to testing on the advice of a police officer.

Calls from the AFP union

Australian Federal Police Association president Angela Smith told the ABC that the technology the police are using can only give a positive or negative reading. And if the technology “could be developed, drug driving should be treated with low and high range tiers similar to drink driving”.

And there’s good news in this regard, as this technology does exist. The police in Norway are currently utilising it. In that country, authorities have been testing drivers for impairment levels in regard to 20 licit and illicit non-alcohol drugs since February 2012.

This includes the three illicit substances that ACT policing are presently testing local drivers’ saliva for traces of, as well as a range of prescription benzodiazepines that have been shown to be present in the bloodstreams of more drivers who cause crashes in NSW than THC.

So, it seems that it’s high time for police in the ACT, and indeed, right around Australia, to invest in technology that can test for drug impairment levels. This would not only improve road safety, but it would also stop authorities using this backdoor method to punish the public for illegal drug use.

By Paul Gregoire and Ugur Nedim

A system of legalised medical marijuana is slowly being established in Australia. Federal government legislation came into effect in October last year, allowing those with licences to cultivate, manufacture and distribute the medicine under strict regulations.

Both the NSW and Victorian state governments are now growing crops of cannabis for medicinal purposes. And Queensland passed legislation last October that will allow doctors to prescribe medicinal cannabis to patients as of next month.

However, as people begin to legally use marijuana for medicinal purposes, they’ll find themselves in a predicament when it comes to driving, as all Australian states and territories run roadside drug testing programs that test drivers for traces of THC: the psychoactive ingredient of the plant.

A zero tolerance approach

Roadside drug testing programs have been implemented throughout the country on the pretext of road safety, the claim being that it will lead to a reduction in the number of car accidents caused by drivers under the influence of drugs.

But the reality is this type of testing has more to do with a zero tolerance approach to illicit substances, as the regime focuses on cracking down on people for using certain drugs, rather than representing an evidence-based approach to halting road fatalities.

Random breath testing for alcohol tests for driver impairment; it is a regime based on extensive evidence that certain concentrations of alcohol in the blood system lead to an increased danger. Indeed, this is why there are different gradients of prescribed concentration of alcohol (PCA) charges – low range, mid range and high range.

But roadside drug testing is not an evidence-based approach – a driver can be charged even if they have minute traces of residual drugs in their system, amounts so small they could not possibly impair driving.

Along with THC, police test drivers for MDMA and amphetamines, via a saliva test. And the devices they use don’t gauge drug concentrations, which means a driver could have taken the drugs days before.

The trouble in NSW

The Northern Rivers region has been the flashpoint of the NSW police blitz on roadside drug testing for years now. This is having an adverse effect on the local court system. Lismore Court is overwhelmed with cases of people who’ve been charged for driving with cannabis in their system.

In February last year, Lismore magistrate David Heilpern found Joseph Carrall not guilty of drug driving, when he accepted testimony that he hadn’t smoked any pot for nine days prior to being tested, which meant he could rely on the defence of ‘honest and reasonable mistake’.

Australia flies in the face of the evidence

Australia is the only country in the world to have implemented a large-scale roadside drug testing program of this kind. In NSW, it began in 2007, while the first jurisdiction to introduce the program was Victoria in December 2004. In England for example, drivers are not charged unless they have a certain concentration of drugs in their system.

At the same time as Victoria was implementing the zero tolerance program, the world-renowned National Institute for Road Safety Research in the Netherlands was recommending against this type of testing.

The institute found that zero tolerance legislation for illegal drugs – with the exception of heroin – would “produce a massive overkill… resulting in very high cost and hardly any road safety benefits.”

It illustrated this in a case-controlled study in the Tilburg police district, where was shown that 87 percent of all cannabis users did not have a concentration sufficient to significantly increase the risk of injury.

The institute concluded that this did not mean cannabis use does not have an impact on road safety, as the remaining 13 percent used more than one drug at a time, and cannabis users constituted 70 percent of this high-risk group.

The research of professor Ross Homel of Griffith University was instrumental in the introduction of random breath testing in Australia. He has expressed the view that the inclusion of cannabis in roadside drug testing is more about the “enforcement of drug laws,” than an attempt to achieve “road safety benefits.”

Cannabis impairment: a contentious issue

The impact of cannabis use on driving ability is a controversial subject. There’s much debate as to whether it poses a significant risk. There’s also contention over the amount of the substance that needs to be taken in order to constitute a threat to road safety.

Professor Homel wrote in his paper that there’s increasing evidence that people who drive under the influence of cannabis do place themselves and others at an increased risk. But he also states that cannabis use seems to increase that risk by two to three times, compared to alcohol, which increases the risk by six to fifteen times or more.

A 2002 paper titled Cannabis and Alcohol in Motor Vehicle Accidents found that “crash culpability studies have failed to demonstrate that drivers” with cannabis in their systems “are significantly more likely than drug-free drivers to be culpable in road crashes.”

A Canadian Senate Special Committee on Illegal Drugs report, found that “cannabis leads to a more cautious style of driving.” And while it found that its use does have “a negative impact on decision time,” it also concluded that this doesn’t mean that drivers under the influence of marijuana posed a traffic safety risk.

The committee remarked that “cannabis alone, particularly in low doses, has little effect on the skills involved in automobile driving.”

In 2015, the US National Institute on Drug Abuse conducted a driving simulator test at the University of Iowa on the effects of cannabis and alcohol on driving ability.

Researchers found that while alcohol had an effect on the number of times a car left a lane it was driving in and the speed of weaving, marijuana did not. But they did find that cannabis increased weaving, and the higher the concentration of THC in a driver’s blood, the worse this became.

Police should stop testing for cannabis

However, Australian police aren’t testing for the level of THC in a driver’s blood.

They’re often pulling people over and charging them for traces of a substance that may have been consumed days before.

Cannabis is now understood to be at the low level of the harm scale, and its medicinal benefits are acknowledged globally. And as legal medicinal use of the drug becomes a reality, the roadside drug testing regime is going to impact sick people who should not be criminalised.

Until there’s conclusive evidence that the use of cannabis is detrimental to road safety, and an evidence-based approach similar to the drink driving regime is introduced, many believe marijuana should be removed from roadside drug testing in all jurisdictions across the country.

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.

The Effects

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.

Imagine this: You are stopped by police for a random roadside drug test. You lick the strip and are told to wait a few minutes for the results. Moments later, the officer returns and says you have tested positive for drugs.

The only problem is you’ve never taken illegal drugs in your life!

It might sound implausible – but as one Sydney man recently discovered, it can and does occur.

The Plight of an Innocent Man

Steve Hunt was driving home from work when pulled over for a roadside drug test.

As someone who does not take drugs, Steve happily submitted to the test.

But the law abiding citizen got a rude shock when the officer told him there was ‘a problem.’

The officer informed Steve that he had tested positive for methylamphetamine, then placed him under arrest and took him to a nearby drug van. Despite a secondary test returning a negative result, police decided to send Steve’s sample to NSW Health for further testing, where a positive result was returned two weeks later.

Adamant that there had been a mistake, Steve asked his lawyers to have the sample retested. Two further tests were conducted at the same NSW Health lab, each returning a negative result!

Despite this, police refused to drop the case and sent it to court. At court, the police prosecutor offered ‘no evidence’ – knowing that Steve would certainly win the case.

Accordingly, the case was dismissed in court.

It was fortunate that Steve decided to fight the case – as he faced a maximum penalty of $1,100 and six months off the road, as well as a criminal conviction for drug driving if he had simply pleaded guilty as many people do.

But his ordeal still cost him $5,000 in legal fees – money which he was forced to draw out of his mortgage to prove his innocence. Perhaps his lawyers should have applied for his legal costs to be paid by police, but for some unknown reason it does not appear that an application for costs was made.

Other Cases

Since Mr Hunt’s case made the headlines, a number of other drivers have come forward saying that they had also tested positive for drugs which they had never taken.

Some had similar experiences to Mr Hunt – where the initial test came back positive, and subsequent tests produced negative results.

In fact, the very first person in the world to return a positive reading for a drug test was nearly convicted of drug driving on the basis of a false reading.

39-year-old John De Jong returned a positive result for methylamphetamine when he submitted to a lick test in Yarraville, near Melbourne, way back in 2004.

Mr De Jong denied ever using the substance and was taken to a drug van for a subsequent test, which indicated a positive result for cannabis.

According to Mr De Jong, he had last used cannabis a month before – meaning that it should not have been detected in a roadside lick test, which can generally only detect cannabis that has been consumed 4-6 hours earlier.

Shocked by the reading, Mr De Jong consulted an independent pathologist, who released a report showing that there could not have been cannabis in his system at the time of driving. As a result, police did not proceed with the charges.

As it was the first time roadside lick tests had been used anywhere in the world, police had arranged for the media to be present at the scene. Mr De Jong therefore found his picture splashed across the news to his embarrassment, and the media presence backfired for police.

Mr De Jong later sued police for defamation, and the matter was settled out of court for an undisclosed sum. Police were also forced to issue a ‘statement of regret’ to Mr De Jong for the error.

Mr De Jong’s case may have been the first – but it’s certainly not the last case of a driver being charged with drug driving on the basis of a false positive.

In fact, a 2006 study found that ‘no device was found to be reliable enough for roadside screening of drivers,’ and that ‘lick’ test devices ‘fail[ed] to meet the 95 per cent accuracy level originally demanded.’

Subsequent investigations have revealed that up to one-third of all drivers who initially test positive during roadside lick tests return negative readings when re-tested in drug vans.

In 2010, Victoria Police admitted that 62 out of 1618 people who tested positive for drug driving had been incorrectly charged. And in NSW, 72 out of 174 drivers tested in a Northern Rivers operation returned ‘false positives.’

Despite these serious issues, NSW Police have vowed to expand their drug testing operations, with plans to conduct 100,000 lick tests each year by 2017.

NSW Police recently announced that they will be tripling the number of roadside drug tests (RDTs), with 100,000 tests set to be administered per year by 2017 in a move that is expected to cost the taxpayer $6 million.

Besides the monetary cost, the increased frequency of operations is expected to absorb enormous amounts of police time and resources – which could arguably be better used investigating serious crime.

But according to police, the increase in RDT is necessary because 11% of all fatal accidents involve a driver who is under the influence of drugs.

Presented with these statistics, one might feel that the increase in tests is a justifiable deterrence measure.

But there are glaring problems with the current testing regime, leading many to conclude that RDT is ineffective and unfair.

Saliva Tests Do Not Test for All Drugs

The mainstream media has largely ignored the fact that Australia’s ‘lick’ tests only test for three substances: cannabis, amphetamines and methamphetamines – including ‘ice’ and ‘ecstacy’ (or MDMA).

This means that those with illegal drugs like heroin, cocaine and LSD in their bloodstream will beat the test.

RDTs will also fail to detect the presence of many prescription drugs that can affect driving ability, including benzodiazepines, morphine and methadone. This significantly undermines the effectiveness of the current testing regime – especially in light of the increase in prescription drug abuse over the last few years.

It should be noted that, however, that if a police officer reasonably suspects that a driver is under the influence of prescription medication or an undetectable illicit drug, they may arrest and require them to undergo a blood test – which can also form the basis of a drug driving charge.

Unfairness of Drug Driving Charges

As discussed in a previous blog, Australian RDTs simply test for the presence of cannabis, MDMA or ice – they do not determine the actual concentration of the drugs in the bloodstream – and they can detect minute amounts of the drugs.

This means that a person can test positive – and be charged with drug driving – despite having consumed drugs days earlier – even if they are no longer affected by the drugs at all and therefore pose no greater danger than any other driver.

An Evidence-Based Approach

Greens MP David Shoebridge argues that the current system is both unfair and ineffective, noting that:

‘police at roadside tests are routinely waving through drivers who are highly medicated on prescription drugs that they don’t even bother to check for. Some of these drivers will be on doses of drugs that are severely impairing their driving ability.’

He suggests that the unfairness of RDTs could be partially rectified by introducing an ‘evidence-based’ approach.

Shoebridge cites the findings of the Wolff Report into Driving Under the Influence of Drugs, which was recently commissioned by the UK Department for Transport. The Report found that, rather than enforcing an arbitrary zero-tolerance policy, an approach based on blood concentration levels – like random breath testing for alcohol – is fairer and more effective.

Researchers found that cannabis impairs driving ability at concentration of 5 micrograms per litre of blood – or 3 micrograms per litre when consumed with alcohol.

Benzodiazepines were found to have a negative impact at a concentration of 550 micrograms per litre – or half of that when alcohol is present.

Such an approach has already been implemented in the UK with great success. There, ‘safe limits’ have been set for a number of illicit and prescription drugs, including cannabis, cocaine, ecstasy and benzodiazepines – and new roadside drug testing kits have been developed to test for cocaine.

But for some reason, this far more sensible approach has not been considered in NSW, let alone proposed or adopted. In the words of Mr Shoebridge:

‘We know from the Wolff report what levels of drugs impair drivers and the law should reflect this. Policing and road safety deserve intellectual rigour because, at the end of the day, people’s lives are at stake.’

Whether NSW will move towards a fairer and more effective system in the future remains to be seen.

In the latest in a nationwide campaign to tackle drug driving, Victorian drivers will face new charges for mixing illicit drugs with alcohol – as well as minimum licence disqualification periods.

The laws are intended to make roads safer, with statistics suggesting that drivers who drink and take drugs before driving are 23 times more likely to be involved in a fatal accident than those who drive sober.

The New Laws

From the 1st of August 2015, Victorian drivers who are caught drink driving and test positive for illicit drugs face increased fines and lengthy disqualification periods.

The following table gives a breakdown of the new penalties:

Blood Alcohol Concentration (BAC)	First offence	Second offence	Third + offence
0.05+	$4,550.10	–	–
0.05 – 0.149	–	$13,650.30 6 months imprisonment	$27,300.60 12 months imprisonment
0.15 +	–	$27,300.60 12 months imprisonment	$40,950.90 18 months imprisonment

Drivers will also face lengthy minimum disqualification periods, with the period depending on the recorded blood alcohol concentration.

Those seeking to have their licence reissued after a period of disqualification must also complete an accredited driver education program.

Previously, the law in Victoria was that persons who drove on a mixture of drugs and alcohol could either be charged with drink driving or drug driving; but not both offences.

The changes aim to close this ‘legal loophole’ by holding drivers accountable for the totality of their actions, and to deter such dangerous conduct.

National Crackdown on Drug Driving

The Victorian laws are part of a nationwide bid to tackle drug driving, which has seen police across all states and territories crack down on the offence.

Statistics published earlier this year suggested that the number of drug drivers was outstripping drink drivers – despite drink driving being the most commonly prosecuted offence in the Local Court.

Authorities previously refrained from testing for drugs because of the huge costs associated with saliva (‘lick’) tests. A single saliva test can cost police $50 – while drink-driving tests cost only one-cent to conduct.

However, with experts suggesting that illicit drugs play a role in 16% of fatal road accidents, police have promised to increase the number of random drug testing operations.

Police have also turned to new technologies to test drivers for drugs, with NSW Police unveiling the Drager Roadside Drug Test earlier this year.

The new testing kit is said to contain ‘sensitive detection technology which reduce[s] the number of drug-drivers returning a negative result.’

The Law in NSW

In New South Wales, drivers caught with drugs and alcohol in their system can be charged with ‘driving under the influence of alcohol or any other drug.’

This offence carries a maximum penalty of $2,200 and/or 9 months imprisonment for first time offenders, or $3,300 and/or 12 months imprisonment if it’s a second or subsequent ‘major traffic offence’ within 5 years.

A major traffic offence is generally one which requires a driver to attend court; such as drink driving, driving whilst suspended or disqualified, or negligent driving causing grievous bodily harm.

Those charged with DUI also face an automatic disqualification period of 12 months, but experienced drug lawyers can fight to have this reduced to the minimum period of 6 months off the road, or may even be able to avoid a conviction and disqualification altogether by persuading the magistrate to grant a ‘section 10 dismissal or conditional release order’.

For those who commit two or more major traffic offences in the space of five years, the automatic disqualification period increases to three years; with a minimum disqualification period of 12 months.

DUI charges are based on observations rather than drug or alcohol testing – for instance, you may be charged with this offence if you are observed slurring while speaking, driving erratically or there are other indications of being drunk. A DUI charge will often be brought when the requirements for breath testing are not met; for example, if more than two hours has passed since you were driving or if you are on your own property (where police are not allowed to breath test you).

Alternatively, if a person is found with more than the prescribed alcohol content in their system AND illicit drugs are detected in a person’s system following an oral fluid, blood or urine test, they could face separate charges of drink driving offence and drug driving.

Drug driving charges are contained in section 111 of the Road Transport Act 2013, and give rise to a maximum penalty of $1,100 for a first offence or $2,200 for second and subsequent offence.

They carry an automatic disqualification period of 12 months, which can be reduced to a minimum of 6 months if there are good reasons to do so.

However, like in the case of DUI charges, a good lawyer may be able to convince a magistrate not to impose a conviction or licence disqualification if there are very strong reasons – such as a pressing need for a driver licence and an otherwise good driving record.

We are constantly being told that drugs can severely compromise our ability to drive, causing lapses of attention, disorientation, a failure to accurately assess risks and even aggressive driving.

It might therefore seem absurd to even suggest that certain drugs might actually have a positive impact on driving ability. Yet this is precisely the testimony given by two expert witnesses in a recent trial in Adelaide.

The Case

The trial involved 39-year-old mother, Leah Jane Lenarczyk, who hit a 12-year-old boy at a pedestrian crossing after collecting her three children from school on November 8, 2012.

The young boy suffered multiple serious injuries, including a broken leg, collapsed lung, abdominal injuries, skull fractures and facial abrasions.

A blood sample was taken from Ms Lenarczyk about 2 hours after the collision, which indicated that she had a ‘middle level concentration’ of methylamphetamine in her system.

She was charged with ‘aggravated causing serious harm by dangerous driving’ under section 19A(3) of the Criminal Law Consolidation Act 1935.

The offence requires the prosecution to prove that she ‘drove a motor vehicle in a culpably negligent manner, recklessly or in a manner which was dangerous to the public, thereby causing serious harm,’ and that she committed the offence in ‘circumstances of aggravation.’

The circumstances of aggravation alleged by the prosecution were that there was methylamphetamine present in her blood when she committed the offence.

While some Australian jurisdictions such as Western Australia require a person to prove that ‘a collision was in no way attributable to the affect of a drug,’ that requirement does not exist in South Australia.

This meant that when considering whether Ms Lenarczyk had driven in a dangerous manner, ‘the level of methylamphetamine is only relevant if the Prosecution establishes that the accused’s capacity to drive her motor vehicle was diminished. The fact that it is an illicit drug is irrelevant.’

The prosecution argued that Ms Lenarczyk’s negligent driving wss attributable to her failure to pay attention whilst driving, which was in turn caused by the presence of methylamphetamine in her blood.

But Ms Lenarczyk’s criminal defence lawyers argued that while she had indeed ingested the drug, it had not negatively impaired her driving ability.

Expert Evidence Suggests Methylamphetamine Can Have a Positive Impact on Driving Ability

The Court heard evidence from two expert witnesses; Jason White, a professor of pharmacology at the University of South Australia, and Michael Robertson, a clinical forensic toxicologist.

Both experts suggested that methylamphetamine did not affect people in the same way as other drugs such as alcohol, which is known to cause drowsiness and fatigue. While they conceded that methylamphetamine can have adverse side effects such as aggression and psychosis, they asserted that it can also have positive effects.

Professor White stated that ‘both mental and physical performance may be improved by administering the drug’ and that low concentrations of methylamphetamine ‘may have relatively little effect upon driving and may indeed have potential to improve driving performance’ as it increased alertness and decreased fatigue.

Mr Robertson agreed with those observations, testifying that methylamphetamine ‘improved alertness and concentration,’ and that its impact on an individual’s driving ability ‘cannot be reliably predicted based on drug levels alone.’

Significantly, both experts testified that there was no evidence to suggest that Ms Lenarczyk had exhibited any of the symptoms associated with driving whilst under a high level of methylamphetamine, such as drifting in and out of lanes, travelling at high speed, or crossing over into oncoming traffic.

The Judgment

After hearing all the evidence, Judge Beazley handed down his judgment, stating that while Ms Lenarczyk had consumed methylamphetamine, it was ‘not a court of morals.’

He accepted the expert evidence and noted that, because the drug has different effects on different people, ‘there is a need for an individual assessment of the particular driving in a given case,’ and that its effects cannot be determined solely from its concentration in blood.

While His Honour found that Ms Lenarczyk undoubtedly failed to pay full attention to the road at the time of the collision, he stated that because she had not exhibited symptoms consistent with high levels of methylamphetamine use, it could not be said that she was ‘so affected by methylamphetamine that she was incapable of effective control of her motor vehicle.’

Accordingly, His Honour found her not guilty of dangerous driving causing serious harm, which was the most serious offence, but guilty of the lesser charge of ‘aggravated driving without due care and attention.’

What If This Had Occurred in NSW?

In NSW, a person can raise a defence to the charge of dangerous driving occasioning death or grievous bodily harm if they can prove that the harm or death occasioned by the impact was ‘not in any way attributable to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs.’

Expert evidence such as that admitted in Ms Lenarczyk’s case may therefore help a person to avoid a conviction for dangerous driving in similar circumstances.

But this doesn’t mean that you’ll get away scot-free in these types of cases. You can still be charged with negligent driving offences, or with drug driving if drugs are detected in your system – even if it is shown that the drugs had no impact whatsoever on your driving.