NSW Drug Driving Laws: Arbitrary, Unfair and Without Evidentiary Basis

NSW Police are well into their unprecedented ‘crackdown’ on drug driving, with an explosion in the number of roadside tests for the presence of illegal drugs over the past 18-months.

Last year saw a 109% increase in drug driving charges over the previous year, with Deputy Premier Troy Grant demanding a tripling in the number of tests.

These tests, unlike most PCA (prescribed concentration of alcohol) offences, can see drivers facing court for having miniscule amounts of drugs in their system – including where the concentration is so low that it could not possibly affect driving ability.

This has led to widespread criticism of the laws on the basis that they are more about exerting control and bolstering the failed war against drugs than promoting public safety.

Drug Driving Offences

The two most common drug driving-related offences in NSW are:

• ‘Driving with an illicit drug present in oral fluid, blood or urine’, which applies regardless of the level of drugs detected; and
• The less frequently-charged offence of ‘driving under the influence’ (or DUI), which is much harder to establish because police must prove the driver was actually affected by drugs when they drove.

Most people now accept that the second category, DUI charges, are justified on the basis that drivers can pose an actual danger to the public. Indeed in a report released by the Centre for Road Safety in June 2015, researchers found that 195 deaths on NSW roads between 2010 and 2013 involved drivers or riders with at least of one of three illicit drugs in their system – cannabis, speed and/or ecstasy. The Centre estimated that 13% of all road fatalities involved a driver affected by drugs.

The justification for the first category (the ‘presence’ offence) is, however, tenuous at best – given that no levels of drugs are specified.

Justification for ‘presence’ offences

The ‘presence’ offence was introduced by the Road Transport Legislation Amendment (Drug Testing) Bill (NSW) just a decade ago, in 2006. The law was part of a parliamentary response to the 2004 hit and run death of nine-year old Dubbo boy Brendan Saul, caused by an unlicensed, under-aged driver with drugs in his system.

Parliament conveniently overlooked the fact, however, that the driver had high levels of drugs in his system and was heavily affected – conduct which was already captured by DUI laws.

The second reading speech for the Bill nevertheless justified the law on the basis that “driving with any amount of these illegal drugs in the body is not tolerated” and the flawed assumption that any level of drugs in the system “affect[s] the skills and sound judgment required for driving.” The speech overlooks the fact that drugs can remain in the bloodstream for many days, long after the effects have worn off.

The NSW law is different to that implemented in the UK, which uses an evidence-based approach to determine levels of drugs which actually affect driving – much like our current drink driving laws.

A proxy war in the crusade against drugs

The absence of an evidence-based approach in NSW has given rise to the criticism that the ‘presence’ offence is a draconian component of the government’s misguided war against drugs.

Greens MP David Shoebridge, for instance, describes the laws “as a witch hunt to catch out [drug] users.”

Evidence-based approach

Existing drink driving laws were introduced after researchers and medical scientists undertook exhaustive studies to establish the levels at which driving with alcohol in the bloodstream is dangerous – ultimately resulting in different penalties for low, mid and high range PCA offences.

Publishing the results of her research into driving with cannabis in the bloodstream in the California Law Review, Assistant Professor Andrea Roth found that “there is no demonstrated linear or predictable relationship between THC blood limits and an increased crash risk.”

The fairness of ‘presence’ offences has also been questioned in the US courts, with an Arizona Court describing the zero-tolerance approach to drug driving as fundamentally flawed, and entirely inconsistent with moves towards legalising the use of medicinal marijuana, and the worldwide push to decriminalise cannabis.

The unfair and arbitrary nature of the law is further highlighted by the fact that only cannabis, ecstacy and amphetamines are tested, and that Australian courts have found that drivers have been charged several days after taking drugs – well after the effects have worn off.

Sadly, the fact that current drug driving laws stem from the government’s narrow-minded war against drugs, are arbitrary, draconian and have no evidentiary basis means that many people are being criminalised despite doing nothing inherently dangerous.

Perhaps Professor Roth sums it up best when she says, “punishment without purpose is immoral.”

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