NSW Police Continue to Harass Motorists with Unjust Zero-Tolerance Drug Driving Laws

A NSW Bureau of Crime Statistics and Research (BOCSAR) study released this week has found that over the period 2008 through to last year, roadside drug testing (RDT) in this state, which was rolled out in 2007, has dramatically increased from the 102 drivers proceeded against on average per quarter in 2008 to the 3,296 individuals charged per quarter over 2023.

The BOCSAR researchers conclude that the significant increase in roadside drug tests conducted was due to two significant expansions, which saw 20,000 tests annually hiked to 97,000 by the Baird government in March 2015 and then the Berejiklian government upped the number again to 200,000 in January 2018, which only ever rose to around 156,000 tests due to the impact of COVID.

The NSW roadside drug testing regime was established via the Road Transport Legislation Amendment (Drug Testing) Bill 2006, due to the success of 1982-introduced random breath testing (RBT) for alcohol, which led to a once common practice becoming highly stigmatised criminal behaviour.

But roadside drug testing doesn’t have the same respect that RBT has and that’s for good reason.

The BOCSAR report does touch upon the dodgy aspect pertaining to roadside drug testing towards the end of its introduction that it describes as a “zero-tolerance approach”, which means that unlike RBT that can ascertain the specific levels of alcohol in blood via the testing of breath, RDT simply takes a sample of oral fluid and checks whether there is any trace of specific illegal drugs.

General deterrence, not specific

“Similar to random breath testing (RBT), it was anticipated that the high visibility of roadside drug testing would increase the perceived risk of detection amongst drug drivers thereby reducing drug driving behaviours,” BOCSAR researchers explained.

RDT was to achieve this chiefly via general deterrence, meaning the effect that the knowledge that roadside drug testing is taking place has on public behaviour in general, as well as specific deterrence, which comprises of individual offenders having been punished for the offence of drug driving refraining from repeat offending.

The BOCSAR report concluded that simply increasing the volume of tests didn’t necessarily result in greater subsequent detection rates, as the expansions had varying results from a 2 percent detection rate to 18 percent. And the variations in detection rates suggest that the results also depend upon where testing takes place, when it happens, as well as those who are tested.

“When we compared drug driving offenders charged in 2019 with those charged in 2023, we found that the 2023 cohort were more likely to be older, test positive for methamphetamine, reside in regional areas and have a prior drug driving charge,” the BOCSAR researchers outlined.

The report further underscores that over the 15-year period considered, “population-level drug use has remained relatively consistent”, while the prevalence of self-reported drug driving had decreased steadily over that time, although rates of self-reported drug driving were already on a downward trend prior to 2007.

The drop in self-reported drug driving hints at general deterrence being achieved via the imposition of roadside drug testing. However, as drug driving remains prevalent, the researchers conclude that RDT is not having a specific deterrent effect, meaning a drug driving brush with the law may not result in people deciding not to partake in illegal drugs and going on to drive at a later date.

A dodgy regime from inception

Then NSW Labor MP Matt Brown explained during the 2006 second reading speech on the NSW drug driving bill that in 2003, a survey of drug users found 43 percent admitting to drug driving, and fewer than three in ten considering that police could detect drug impairment, while a 1999 report found that over 1997 and 1998, 24 percent of drivers killed in motor accidents had drugs in their system.

The successful passage of the bill saw the enactment of the offence of drug driving, or what is today driving with the presence of certain drugs (other than alcohol) in oral fluid, blood or urine, which is contained in section 111 of the Road Transport Act (NSW) (the RTA).

The offence of drug driving was originally inserted into the since repealed Road Transport (Safety and Traffic Management) Act 1999 (NSW).

Different penalties have applied over the past 16 years and when the regime was rolled out, the prescribed illicit drugs tested for were THC from cannabis, MDMA or ecstasy and amphetamines, including speed and ice. And since 2018 cocaine too has been added to this list of tested drugs.

If booked for drug driving and it’s the first time the motorist has been charged with a major traffic offence in 5 years, the penalty is an automatic licence disqualification of 6 months, which a magistrate can lower to 3 months and a fine of up to $1,100. But if it’s a second or subsequent major offence in 5 years, 12 months disqualification, which can drop to 6 months at the discretion of the magistrate, and a fine of $2,200 applies. The exception is if the court is persuaded to grant a non-conviction order such as a section 10 dismissal or conditional release order without conviction, in which case there is no criminal conviction, no disqualification and no fine.

The difference between drink driving under section 110 of the RTA is that it tests for the “presence of a prescribed concentration of alcohol in a person’s breath or blood”, so these are specific levels and penalisation increases with the concentration of alcohol in a driver’s blood, while in the case of drug driving, it’s simply the presence of certain drugs, with no legislated levels or varying penalties.

As noted in the BOCSAR report, to drug test a driver, police officers drag a Securetec DrugWipe sample collector over a motorist’s tongue to obtain a saliva sample and if this turns out positive, a second test is then performed with the use of a Draeger Drug Test 5000, and if that too is positive, a saliva test is then sent to the laboratory for testing.

Absolutely no excuse

A sustained campaign calling for the reform of NSW drug laws, so that a model that reflects the underlying principles of drink driving is established, which would mean solely punishing people who are driving under the influence, not penalising people for driving with the mere presence of a drug they consumed days prior or that they’ve accidentally ingested without a clear sense of how.

Former NSW Magistrate David Heilpernmade a series of landmark drug driving rulings at Lismore Local Court over the last decade, which entailed motorists charged with drug driving then acquitted because one individual hadn’t smoke a joint for nine days prior to testing positive, another had tested positive over second hand smoke, while a third had been using topical cannabis cream.

But gone are the days when NSW magistrates can call out the flawed nature of drug driving, as on 26 July last year, Mark Buscombe found on appeal that a magistrate was right to convict Mina Narouz of drug driving, even though he’d argued that the cocaine in his system appeared after he’d sipped a sports drink containing it, and it was further found that this crime is an absolute liability offence.

An absolute liability offence means that the prosecution does not have to establish a mental fault, and there are no defences available to argue innocence against such a charge. This is opposed to a strict liability offence, whereby the prosecution doesn’t have to prove a person purposefully committed a crime, and the defence of honest and reasonable mistake of fact can be raised.

And when the case was again appealed to the NSW Court of Criminal Appeal last February, a three justice panel confirmed that drug driving is an absolute liability offence, which means it doesn’t matter how traces of drugs came to be in a driver’s system, as a motorist whose blood is found to be tainted with their presence is guilty regardless.