Former Magistrate Heilpern Continues to Call for Medicinal Cannabis Driving Defence

Medicinal cannabis became a legally prescribed medicine on 30 October 2016, and despite immense teething issues in terms of the drug initially being legal but unobtainable, the Medical Board of Australia celebrated more than one million patients prescribed by January 2024, however those using the cannabis medicine continue to lose their drivers licence after testing positive to traces of it.

As former NSW Magistrate David Heilpern recently told the SCU Buzz podcast, most prescribed cannabis medicines contain a psychoactive substance known as THC, which is one of the drugs NSW police test drivers for as part of roadside drug testing operations, and if any trace of this is detected in a driver’s saliva, they can have their licence suspended and face a fine.

Now dean of law at Southern Cross University, Professor Heilpern added that of the million cannabis scripts issued, the vast majority contain THC, and therefore, “every single one of those people who fill and use that prescription are committing criminal offences if they drive on any road throughout Australia: that is a mass criminalisation of the population the like of which we’ve never seen before”.

However, medicinal cannabis being “the only prescription drug where detection is an offence” has nothing to do with individuals driving whilst impaired by the medicine, but rather it’s due to the unjust system of roadside drug testing that NSW and all other Australian jurisdictions rely upon, as users of medicinal cannabis can be charged with drug driving when they’re not affected by the drug.

The roadside drug testing employed by NSW police tests drivers for the mere presence of a substance in their system, and not for intoxication, which means traces of cannabis medicine can result in a positive test long after the substance has had any effect, and a recent court ruling has resulted in a situation where such a positive test result can no longer be properly contested in court.

Nothing to do with road safety

“No one is talking about decriminalising driving under the influence, where you are adversely affected, that should always remain an offence, whether it is a prescription drug or an illicit drug,” Heilpern told the SCU Buzz podcast. “But driving with a detectable level in your system is unique to Australia in terms of random testing.”

“Australia does more random saliva testing for THC than the rest of the world combined. In fact, New South Wales alone does more than the rest of the world combined,” the Lismore former magistrate made clear.

“So, we have gone a bit crazy with a law that shows no results in terms of road safety or reducing road trauma.”

Section 111 of the Road Transport Act 2013 (NSW) contains the offence of driving with the presence of certain drugs (other than alcohol) in oral fluid, blood or urine. Devices used in testing are only set to detect the presence of four illegal drugs: MDMA, amphetamines, THC and cocaine. And this means that tiny traces of cannabis that can’t cause impairment, can result in a drug driving charge.

If found guilty in respect of the section 111 offence, and it’s a first-time drug driving offence, drivers currently face a 3-month licence disqualification and a $572 fine, however if it is a second or subsequent offence, they are then looking at a fine of up to $3,300 and a 12-month driver licence disqualification.

Testing for the mere presence of drugs is completely different to random breath testing for alcohol, as RBT detects the concentration of alcohol in a driver’s blood, and hence, whether they are driving drunk.

However, in terms of presence testing, as the body stores THC for long periods after impairment, traces of the substance are likely always present in the saliva of a prescribed medicinal cannabis user.

“When there have been other reforms, like airbags or drink driving, there has been a mass reduction in the road toll,” Heilpern underscored, “we have not seen that at all for drug driving testing in Australia.”

Absolutely no excuse

Drug driving was rolled out in New South Wales in 2007. In 2015, the Baird government announced it was upping the number of tests to 97,000 annually, and the Berejiklian government then rose the number of tests over a 12 month period to 200,000 in early 2018.

Heilpern delivered a number of welcomed, yet controversial, rulings in between the announcements of the two increases in testing, which related to three separate cases, where he found that despite each of the drivers having tested positive for driving with THC, each of them were not intoxicated at time of testing, as the traces of cannabis detected in their salvia were present for other reasons.

Each of these drivers were found not guilty of cannabis driving for reasons such as having smoked the joint that led to a positive test nine days prior to testing, or being found to have tested positive after having used a topical coconut cannabis cream, while in a third instance, the individual was found to have tested positive due to the second-hand cannabis smoke of an acquaintance.

Yet, since he gave up the gavel five years back, this has all changed, as a February 2024 NSW Court of Criminal Appeal finding confirmed that a July 2023 NSW District Court ruling was correct in finding that the offence of drug driving is an absolute liability offence, which means the legal defence of honest and reasonable mistake of fact is not available to those charged with this crime.

Prior to this, drug driving had been considered a strict liability offence that allowed for the raising of the defence of honest mistake of fact, which is what the drivers who tested positive but were then found not guilty by Heilpern had argued. So, if those same three drivers went before a magistrate under the same circumstances today, they’d necessarily be found guilty.

“That means it doesn’t matter how you came to have the drug detected in your saliva or in your blood or in your hair follicle, depending on however they want to take it, because it’s a zero reading that’s required,” Heilpern told Sydney Criminal Lawyers in the wake of the ruling last year. “This means that however it came into your system you are liable.”

A cannabis driving defence

“There is one state in Australia that has a defence if you have a prescription – that state is Tasmania,” Heilpern further told the SCU Buzz podcast last month. “Now, by chance, and I do believe it’s by chance, it’s the only state in Australia, where the road toll is not increasing.”

Since medicinal cannabis was legalised, there has been multiple unsuccessful attempts to legislate for a medicinal cannabis drug driving defence in mainland jurisdictions, which would allow those individuals who test positive for cannabis driving but also hold a valid prescription, being able to then produce their script for the authorities to have the charge wiped.

As of this week, however, Tasmania no longer holds the title of the only state with a medicinal cannabis driving defence, as late last year, the Victorian government passed legislation providing for such a defence in that jurisdiction, which came into effect on 1 March.

Over recent years, Heilpern has been advocating for a NSW medicinal cannabis driving defence in NSW, via the Drive Change campaign.

However, several past attempts by the NSW Greens to establish such a law have been knocked back, while a 2023 NSW Legalise Cannabis bill proposing to enact the defence has been sitting before parliament since its second reading speech two years ago.

“When I was a magistrate, I was required to take people’s licences from them – that was one of the reasons I left the job – even though they had a prescription, even though there was no hint they were driving adversely because of taking their medicine,” Heilpern said, as he further set out the injustice of NSW drug driving laws, during the February podcast.