Clamour rises for roadside drug testing

Alarming statistics, mounting public pressure and next year’s looming cannabis referendum have forced the government to consider ways of tightening New Zealand’s roadside drug testing regime.

Drug Testing

Nick Leggett, Clive Matthew-Wilson & Tony Bouchier

Many consider current testing to be woefully inadequate.

Last year 71 people were killed in crashes where drivers were found to have drugs or medication in their systems which may have impaired their driving, compared to 109 deaths where a driver was under the influence of alcohol.

And analysis of blood samples from drivers killed in crashes between January 2014 and May 2018 shows 29% had used alcohol, 27% had used cannabis, 10% had used methamphetamine and another 15% had used other drugs.

Of the drivers caught drink-driving, more than a quarter also tested positive for recent cannabis use.

Such is the public anger and frustration on this issue that a petition was recently presented to Parliament by families who’ve lost loved ones to drugged drivers, calling for the urgent introduction of random roadside drug testing.

Last year Logan Porteous lost three family members to a drugged driver who was high on cannabis and synthetic drugs. Seven people were killed in the horrific crash at Waverley and Porteous says the issue of drug driving can no longer be ignored.

“It is unacceptable that ministers have been sitting on proposals from officials for roadside testing for nearly 18 months when more than 70 lives a year are lost to drugged drivers,” he says.

“Roadside drug testing is a no-brainer and government just needs to get on with it.”

National MP Nick Smith, who was the main champion of the petition, says the government is being reckless with public safety by liberalising access to drugs while ignoring the real risks for road safety.

“I will be doing all I can to support these families, promote the petition and get the laws in place to get drug-impaired drivers off the road,” he says.

For its part, the government has sought public and expert feedback on ways to improve roadside drug testing, including the type of drugs to test for, and what the penalties should be.

Associate Transport Minister Julie Anne Genter says while drug-drivers already face serious criminal penalties if caught, the current law makes it hard for police to do high numbers of tests that could deter drug-driving.

Unlike alcohol breath tests, drug tests can detect only the presence of drugs or medication and cannot determine if a driver is impaired, she says.

At present, if a police officer has ‘good cause to suspect’ a driver is on drugs, the officer can require the suspect to do a physical impairment test such as walking in a straight line or standing on one leg.

A driver who fails this test can be temporarily forbidden to drive and asked to provide a blood sample to test for drugs.

According to the New Zealand Automobile Association, these tests can take up a lot of police time and resources and, as a result, few are done.

The AA says its members support the introduction of saliva-based drug testing as carried out in some jurisdictions overseas, such as Australia.

It believes historic criticisms about the reliability, accuracy and the length of time a saliva test takes no long hold weight.

“The fact is, we’ve got many countries around the world - Australia being the closest - that have introduced roadside drug testing and it works. The technology has got to a point now where it can be used,” the AA says on its website.

With so many differing views about the efficacy of New Zealand’s current roadside drug testing regime, LawNews sought the opinions of three people with a close knowledge of the issues involved.

ADLS President and former police officer Tony Bouchier, Dog & Lemon Guide publisher and road safety campaigner Clive Matthew-Wilson, and Road Transport Forum (RTF) chief executive Nick Leggett were asked to respond to some key questions.

Bouchier says he is commenting in his capacity as a criminal barrister and not as ADLS President or as a member of any other body.

Do you accept we have a significant issue with people driving under the influence of drugs in New Zealand and, if so, how bad is the problem and how long has it been an issue?

Nick Leggett
“The number of deaths caused by drugged drivers – 71 last year and 88 the year before – suggests this is a road safety issue of some magnitude.

“By way of perspective, this is higher than the number of people killed by drivers above the alcohol limit or who refused testing – 66 in 2018 and 74 in 2017.

“Testing for drugs is not always undertaken and so these figures will be only the tip of the iceberg, and they reflect only deaths, not injuries.

“Truck drivers are in the unique position of sharing their workplace – New Zealand roads – with the public.

“While the road transport industry follows workplace health and safety laws to ensure drivers are not drug-impaired, with extensive testing regimes including pre-employment, random and post-incident/accident drug testing, there is no guarantee that those they are sharing the road with won’t be impaired by drugs as there is no adequate testing regime for them.”

How does the testing need to be improved, what drugs should be included, and what should the penalties be?

Nick Leggett
“The RTF fully supports a comprehensive roadside drug screening policy as a first-line tool for early detection of impaired, or potentially impaired, drivers.

“This should, without question, be part of an overall aspiration to mitigate risk on New Zealand roads of injury and death caused by drugged drivers.

“There needs to be an agreed, consistent impairment testing regime backed by evidentiary testing, as there is for alcohol consumption and driving.

“It is up to those with the appropriate expertise to comment on which drugs should be included, or excluded, from drug screening. However, any drug that results in impairment, or reduction of cognitive ability, and therefore makes it unsafe for the user to drive, should be included.

“The government needs to change its singleminded road safety focus, which is tunnel-vision on speed and getting vehicles off the road, and take a holistic look at all the other contributing factors.”

Tony Bouchier
“Our system in New Zealand is effective [but] I believe the nanograms level resulting from a positive [marijuana] blood test should be set at a level to ensure non-impaired drivers are not prosecuted at all.

“In Colorado, for example, the level is 5 nanograms/ ml of THC. Our drink-driving laws allow some alcohol in the system but no such nanogram level in relation to cannabis applies. Impairment is presumed from a positive test for any drug, no matter what the level.

“I am very concerned in New Zealand that people are getting serious convictions for driving with an illicit drug in their system, without proper evidence that they were impaired.

“They are receiving these convictions and subsequent penalties as though they were an impaired danger on the road. These are serious convictions which can impede travel and employment opportunities, and have other repercussions.”

Other jurisdictions like Australia, Canada and the UK have had roadside drug testing in force for many years. Are you concerned we have been dragging the chain and, if so, what do you attribute this to?

Tony Bouchier
“Am I concerned New Zealand is dragging the chain? No.

“Drug-impaired driving has not been identified as a problem in New Zealand that requires urgently addressing. There are other more serious and obvious actions the government could take to address our road accident and death statistics.

“A drug-driving testing program similar to, say, our drink-driving testing program would result in more citizens being detained by police while going about their lawful business.

“While I accept police are responsible for the protection of life, a lower police presence in a citizen’s life is a good and healthy thing for our rights, freedoms and our democracy.

“If a drug-testing program were introduced, it would probably be similar to Australia’s, which allows random saliva testing.

“The detection of any prohibited substance (only those substances the machine is programmed to detect, of course) will result in a blood test.

“This can result in non-impaired drivers being convicted. If impaired drug-driving is the road safety issue to be addressed, how can such a program be allowed to prosecute someone who is no more a danger on the road than anyone else?

“That does not address road safety. Intuitively, it does not feel right. That’s not justice in action.

“While you may think I am taking a liberal view on this topic, I do want to make it clear that taking alcohol or drugs and getting behind the wheel of a car is clearly very risky to the public and the driver.

“This issue is not about illicit drugs. It is about any drug that impairs the ability to drive. If someone gets behind the wheel when not fit to drive because of something they have ingested, they should face the same consequences as a drink-driver.

“The standard of proof to prosecute someone for driving under the influence of drugs should be the same as any other crime: ‘beyond reasonable doubt’. The standard should not be: ‘well, you have a prohibited drug in your system, you must be impaired, hence you are guilty.’

How difficult will it be for the government to resolve conflicting issues such as the proposed drug law reforms, giving the police discretion to prosecute for the possession and use of drugs and requiring them to take a therapeutic approach to drug users?

Clive Matthew-Wilson
“The question of what to do once drugs have been detected is a vexed one.

“An ordinary person, such as a lawyer, has accessible income and public standing, so the threat of prosecution for drug use on the road is likely to be a high deterrent.

“However, the people most likely to be taking drugs and driving dangerously tend to be poor, uneducated and living at the edge of the criminal community.

“This group, who appear to be the highest risk, are the least likely to respond well to the usual regime of fines and disqualification.

“A typical, but sad, example was the late Jeremy Thompson, 28, who caused a head-on crash near Waverley that killed seven people in 2018. Thompson had been smoking synthetic cannabis before the crash.

“Arguably, substance abusers who drive should be required to go through rehab rather than other, less effective punishments.”

Nick Leggett
“Disappointingly, the [government’s] discussion document veers towards the rights of drug-using drivers rather than [focusing] on the safety of those who share the road with them, or the rights of those they kill or injure.

“In fact, the discussion document puts up time [for testing and prosecuting] and cost or ‘pressure’ on the system [for testing and prosecuting] as significant barriers to any change.

“If the government were as committed to road safety as it says it is, surely a small amount of time spent on a roadside (between two and five minutes), or at a police station, for testing is justified in the face of the high road toll.”

Tony Bouchier
“I fully support the proposed therapeutic approach to drug offending. The war on drugs has failed and a new approach needs to be adopted. Most criminal barristers agree on this.

“Drug-driver testing cannot be allowed to be a proxy for policing and penalising drug use in our communities.

“Clearly, drug-impaired driving should be punished in the same manner as drink driving. But any system introduced must ensure non-impaired drivers do not incur a drug-driving conviction and penalty.

“New Zealanders have been well educated over many years on the dangers of drink-driving. The government needs to embark on a similar education program for drug driving. That’s a good start to addressing drug driving.

“In my experience, the general population thinks of drug-driving as some longhaired, sandal-wearing dope-head getting high and getting behind the wheel of a car, driving and killing some poor innocent.

“The issues around this topic are far, far, far more complex than that.”

Given the conflicting issues, could defence lawyers have a ‘field day’ exposing loopholes in any new legislation on roadside testing?

Clive Matthew-Wilson
“The government is well advised to stay away from roadside drug testing until the technology to usefully detect drugs of impairment is vastly more reliable than it is at present.

“The current police drugged-driving regime is based on the driver’s behaviour, which is an eminently sensible approach. If a driver is weaving all over the road, it becomes obvious that something is wrong.

“Proving drug use through a blood test is then easier. But even if the police can’t prove drug use, they can prosecute for the driver’s behaviour.”

Tony Bouchier
“If any legislation around roadside testing is passed, it will be closely scrutinised by lawyers.

“If there are loopholes in the legislation, they must be exposed. That’s our job. That’s what bad legislation deserves.

“I think the biggie is breaches of the New Zealand Bill of Rights Act.”

Are you concerned the incidence of drug-impaired driving could be exacerbated by the government’s softer stance on drug abuse, such as moves towards legalising recreational cannabis use?

Clive Matthew-Wilson
“The current moves to decriminalise cannabis will still not permit drivers to use the drug.

“The vast majority of people under the age of 50 have probably used cannabis already and there are probably hundreds of thousands of regular users.

“The legislation to decriminalise cannabis is simply locking the door after the horse has bolted.”

Tony Bouchier
“Will legalisation lead to a greater incidence of drug-impaired driving?

“The Netherlands, where marijuana has been freely available in coffee shops since the mid 1970s, has no greater incidence of cannabis use than Ireland where it has always been illegal.

“So no, I don’t think legalisation will exacerbate the situation.

“If we have a problem of drug-impaired driving, we have it already. If we don’t have a problem, legalising marijuana will make no difference.

“If the government is serious about catching drug-impaired drivers, all drugs capable of impairing a driver should be tested for at the roadside. To do anything else would be a complete waste of time.

“All it would do is catch mainly cannabis users. Drug-driving involves a large range of drugs. Let’s not narrow the topic of drug-driving down to cannabis alone.”

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