Late last year, we published a blog about the NSW Police Force’s controversial plans to expand roadside drug testing across the state.
The announcement received a mixed reaction – with police claiming that an increase in drug testing is necessary to reduce fatal collisions attributed to drug driving – while others, including Greens MP David Shoebridge, arguing that the effectiveness of roadside lick tests is questionable because they only detect the presence of illicit drugs – rather than the amount.
As Mr Shoebridge point out, this means that drivers who take drugs days or weeks before driving could potentially test positive – despite not being under the influence at the time of driving.
Mr Carrall’s Case
This was the exact predicament that NSW man Joseph Ross Carrall found himself in when he tested positive for cannabis in June 2015 – nine days after consuming the drug.
Mr Carrall was charged with drug driving and his case proceeded to a defended hearing in Lismore Local Court last week.
During the hearing, Mr Carrall testified that he last used cannabis nine days before driving – and had followed the advice of a police officer who previously told him to wait one week after using the drug before driving.
Mr Carrall raised the defence of ‘honest and reasonable mistake of fact,’ arguing that he relied on the advice of the police officer and only drove after he honestly believed the cannabis had cleared his system, and that his belief was reasonable in the circumstances.
Honest and Reasonable Mistake
In ‘strict liability’ cases – such as drink driving, drug driving and driving whilst suspended or disqualified – a person must be found ‘not guilty’ if they are able to establish that they ‘honestly’ believed that they did not commit the offence (eg have drugs in their system) and the belief was ‘reasonable’ in all of the circumstances.
The first requirement of ‘honesty’ is not normally difficult to establish; for example, in drink driving cases, a person who drives the ‘morning after’ may honestly believe the alcohol in their system is gone.
The more difficult part is proving that the belief was ‘reasonable’. It may, for example, be reasonable if a person’s drink was spiked and they thought they were tired rather than drunk, or if they relied on specific information from an expert or person in authority before engaging in the otherwise illegal conduct.
Lismore Local Court Magistrate David Heilpern accepted Mr Carrall’s defence and found him not guilty.
Such a finding is rare in drug driving cases – with just 4 drivers out of 3043 being acquitted between January and September 2015.
In terms of ‘reasonableness’, the Magistrate took into account the police officer’s advice that Mr Carrall could drive a week after smoking cannabis. He also considered the fact that it is difficult for people to know when drugs are no longer in their system.
Whereas in drink driving cases, there is a wealth of information about the fact that alcohol can remain in your system for over 24 hours, there is little information about how long different types of drugs remain in the system.
What Does This Mean for Drug Driving Laws?
Some argue that the decision opens the floodgates to contesting drug driving cases.
However, it should be noted that the defence of ‘honest and reasonable mistake’ has always been available in drug driving cases, and the facts of Mr Carrall’s case are quite helpful – especially the advice from police that he would be able to drive after a week. No doubt that if police have any sense, they will cease giving such advice to motorists.
Having said that, the lack of information about how long different drugs stay in a person’s system makes the defence of ‘honest and reasonable mistake’ a viable option where drivers are tested a significant period of time after having taken the drug, especially if they have received advice from a doctor or information through independent research that the drugs would no longer be present in their system.