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Drug-driving law fails justice test

These are the men who brought you the drug-driving law: in suits from left, NSW premier Mike Baird, NSW National Party leader Troy Grant and roads minister Duncan Gay at a related press conference at Dubbo on March 15, 2015. AAP Image/Nikki Short

These are the men who brought you the drug-driving law: in suits from left, NSW premier Mike Baird, NSW National Party leader Troy Grant and roads minister Duncan Gay at a related press conference at Dubbo on March 15, 2015. AAP Image/Nikki Short

David Lovejoy

We are a highly regulated country. If a company here tried to launch a product that was defective in its operation, based on dubious science and caused severe damage to the lives of the people it was supposed to serve there would be swift action, and probably severe penalties.

Unless of course it were a government product. Then the perpetrators would line up to take credit, and spin their misinformation and dodgy statistics to the credulous media.

Meet the Mobile Drug Test.

It has been around for a while but in September National Party politicians Troy Grant (police minister) and Duncan Gay (minister for roads) announced that they would greatly extend the use of this controversial testing technique.

However, the drug test has defects that would trigger watchdog alarms were it not a government scheme. Here are some of them.

It produces false positives.

During ‘Operation Saturation’, which targeted the northern rivers from June 9 to July 6 this year, tests were administered to 1,376 people. Of these, 246 returned positive results, but when they were immediately tested again in a mobile drug lab, 72 – more than a third – were found not to be positive at all (report by Darren Coyne, Echonetdaily, July 10, 2015).

Selective swabs

It misses the worst drugs and it penalises drivers who may be completely unaffected.

The swabs test for cannabis, amphetamine and ecstasy, but do not identify opiates or pharmaceutical medications such as painkillers and anti-depressants, which are known to impair driving skills. They test for minuscule amounts of cannabis, which means that a trace amount in a driver’s body, perhaps days after ingestion, records a positive reading – even though there is no suggestion that the drug is affecting the driver.

It does not test for driving impairment.

You can fail a roadside test not because you are under the influence of drugs, but because of the presence in your body of prohibited molecules, no matter how infinitesimally few they may be. The commander of random drug testing, Inspector Steve Blair, had this to say in an interview with Josh Butler of the Huffington Post (September 12, 2015): ‘It is purely a presence offence. In the roadside test, we’re not saying you’re impaired or off your face. The offence is simply a strict liability. If you have it in your system, that’s it.’

Lifestyle attack

It is therefore not a road safety measure but an attack on lifestyles that people such as Grant and Gay disapprove of. It is hard otherwise to explain why some drivers are stopped more than once for ‘random’ tests, why the police were unwilling to comply with a Greens party freedom of information request for the scientific basis of the tests, and why cocaine users are left out of the net.

According to drug detection expert Tony Graham, incorporating a test for cocaine in the saliva swab would be a simple matter. ‘There is absolutely no reason – if they choose to – why they can’t do it,’ he said (quoted by Dana McCauley, Sydney Morning Herald, November 28, 2015). There is also of course absolutely no reason why police shouldn’t run sniffer dogs through places where bankers, lawyers and brokers are using cocaine, as well as where young people are using cannabis.

This is an expensive campaign. The drug test kits cost about $40 each and at last count there were five mobile drug testing buses in NSW, each costing up to $500,000. Add in the cost of training, laboratory work and all the television ads and it seems odd that the taxpayer should have to foot a bill of this size for activities that are not evidence based.

We know that Australian governments have lately found it hard to frame policies consistent with systematic knowledge – you know, science – but in this case they would not have to look far, as at least one other country has done the research. Greens MLC David Shoebridge pointed out (in the Brisbane Times, October 19, 2015) that the UK’s Wolff Report on Driving under the Influence of Drugs is designed to establish the world’s best practice in tests for drug-impaired driving.

Safe bet

Comparing evidence from Britain and many other countries, the report concludes that the level at which cannabis impairs driving is a blood concentration of five micrograms per litre. It would be a safe bet that most if not all of the convictions recorded against drivers in NSW from random tests concerned levels much lower. The Wolff Report also tabulates the driving impairment thresholds of other drugs, including combinations of drugs with alcohol, and finds the most dangerous to be the valium-type medications. Such prescription drugs are the most often detected in drivers involved in accidents, and the second most likely (after alcohol) to be found where the motorist died in the accident.

Why has our legislation ignored scientific evidence? Probably because mobile drug testing originated in Victoria in 2004 when there was less evidence available (the Wolff Report came out in March 2013). Other states have adopted the Victorian model (and the drug kits that are manufactured in Victoria) without, apparently, giving it any critical thought.

The other reason for avoiding evidence-based legislation is less benign. Right-wing ‘war on drugs’ ideologues are keen to use the police in their attacks on unruly minorities. It is hard to forget how in the eighties Sydney police were flown in to treat Main Arm settlers like terrorists. Citizens who stand up to polluting gas miners and refuse to accept the demonisation of useful herbs certainly create headaches for authorities, and following the Bay’s experience of over-policing during Schoolies this year it might appear that our patch gets more attention than it strictly needs.

Cannabis benefits

Ironically, some parts of government are beginning to see the benefits of medicinal cannabis. The cultural warriors bitterly resist this development, which blurs the simple black-and-white, them-and-us dichotomy they operate under. Even if they are ultimately defeated, there is little doubt that searching for cannabis residue in the bodies of northern rivers drivers will bring them a rich haul of ruined lives. There have already been cases of false positives costing thousands of dollars to fight, of trace drug findings losing people their licences and hence their jobs.

World’s best practice would abandon the ideology of the war on drugs in favour of measures for genuine road safety. It would give us tests that can identify all the drugs of concern, tests that do not produce numerous false positives and tests that measure the actual driving impairment of those being tested.

Until random drug tests achieve that minimum level of practicality and justice, the public should be wary of the motives of the politicians pushing them.


27 responses to “Drug-driving law fails justice test”

  1. Mikey Nomad says:

    Given the seemingly endless stream of new research and evidence pointing to the fact that Marijuana isn’t the ‘killer weed’ after all, maybe it’s time our legislators take a fresh look at the laws which have impacted so negatively on users for so many years. Currently we have the absurd campaign to bust and disqualify drivers for having ‘traces’ of THC in their systems that may have been ingested days or weeks ago, being carried out by a small militia of police and vehicles besieging various communities in our area … and the NSW government’s recent farcical ‘Stoner Sloth’/’You’re Worse on Weed’ campaign that has so spectacularly backfired on them in the last week. These campaigns are costing a fortune for no other purpose than enforcing outdated perceptions about Cannabis use.

    Legislators and police seem to be in denial of the evidence at hand, that Alcohol is the no1 destructive drug affecting our society. Cannabis on the other hand is looking more and more like an intelligent choice with regards ‘recreational’ drugs … even without considering the many positive medical uses now being discovered. It really is time for a change.

  2. Susana says:

    I heard from a reliable source that it is part of the deal for Fred Nile supporting government legislation in the Upper House.

  3. Derek Harper says:

    Excellent article David. Unfortunately our politicians and police come from from a tobacco and alcohol culture and have too many lunches with lobbyists. By the way, what happened to the Ballina police who beat and framed an innocent bystander?

    • Mick says:

      Derick , there was a small mention in the SMH today ( 24/12 ) of adjournment till Feb , no doubt it will cease to be mentioned the longer the adjournment`s go on …..

  4. Jenny Plant says:

    This test is just unfair and is basically just revenue raising. Until these so called men in suits actually get a test that gives actual results and limits, like the RBT, this test cannot be trusted. Catching many people out over the presence of small amounts of cannabis that they have often used many days prior is insane. Not to mention the many people who have already tested positive to cannabis who never consumed it at all! There is no way this test is fair or accurate in any way shape or form.

    People who drink drive get less of a penalty than someone who used a tiny amount of weed sometimes many days prior and is not impaired to drive at all!

    Baird is fast losing supporters over this insane decision to use these saliva tests. How come the test doesn’t even pick up on heroin or any prescription drugs?

    Not fair, and revenue raising, we should all be up in arms over this.

    Many other places in the world are becoming much more relaxed with cannabis laws and then we have the short sighted people in power that we have doing this. No wonder there is so much violence and agro with so much alcohol and ice being consumed. Legalise cannabis for recreational use for adult and stop pretending you know what is best for everyone, because you clearly don’t!

  5. Johanna says:

    I was one of those 72 people mentioned in the article, and while I never- in any way, shape or form- consume cannabis, I am now paranoid when driving about being tested again, as I now know that being innocent is no protection here.

  6. James McNulty says:

    This test is a joke. Why don’t they test for cocaine or heroin or any pharmaceutical drug? And why on earth are they allowed to test for cannabis ‘presence’ that can be from many days prior?

    Surely an actual test that determines a level of how much is in your system should be used? This seems like blatant revenue raising and a police nanny state which is clinging on to a failed zero tolerance to drugs (except alcohol).

    Baird, Gay and Grant should be sacked over this.

  7. Doctor Wom Bhatt says:

    Another ‘politically loaded’ practice which reeks of the smell of punishment for non-compliant/critical communities. Has this got anything to do with the success of the Bentley Blockade ? These manipulating folk exhibit symptoms of Parallel Universe Syndrome ( PUS ) . There is no evidence of Science being referenced in this. It is an example of cheap politicking using the “Law and Order” trigger. No doubt it will have considerable support from the MSM intoxicated, Alcohol imbibing and Big Pharma treated ignorant sheeple. But that’s enough carping. Folk need to collectivise, organise and despatch the engineers of this “social engineering” program to the electoral waste bin. The rest of the World is moving on while this area is being held back. But, hasn’t that mostly been the case in the story of this ” Colonial Settler Quarry ” ?

  8. Doctor Wom Bhatt says:

    Considerable Policing resources are going to be tied up on this. Surely there are more pressing matters to attend to that are of a true criminal nature where there are actual victims. I suggest that tasks of this nature should be undertaken by a dedicated agency solely focused on Traffic Management. This task adds to further denigration of the Policing Function and loss of further respect for it.

  9. ang says:

    I can vouch for the fact antidepressants, antipsychotics, and of course valium type things, in my own experience, are not good, while driving. But quite legal, why? Oxycontin (pain tablet), is more addictive than heroin, yet it is OK to drive while under its influence??? Antidepressants are also known, to impair when alcohol is drunk, on this stuff, you drink, and drink to excess, it seems to be a side effect of ADs, not only drink to excess, but also do stupid things, like drive. ref Rxst risk website, “”driven to drink”””..
    I am off all these horrific tablets (nearly), and take CBD oil…..No risk of any hight, as even if there is THC, if it isnt heated, it doesnt give you a high.
    So if I get drug tested, off all the crap pushed by pharma, that has nearly killed me, and others…… and I consume a herb, will I get a criminal conviction? I am a grannie…… will I get done for dope? I need to know, do I have to pay for taxis everywhere, or do I go back on all these horrific drugs, by pharma, that really do make me an unfit driver, but legal?
    I hate corruption with a passion, and pharm companies are corruption. Every big pharma company has been fined for fraud, some many times over, all in the last 3 years.
    Paxil fraud, the trial on kids, now proven an absoluted fraud. If you know any kids who suffered at the hands of paxil, in the last 15 years, tell the parents they can sue GSK now study329.org is the link

  10. George Lewin says:

    It’s time to fight back against this ridiculous, unfair, heavy-handed and ineffective Random Drug Testing regime unleashed by the conservative morons who run this country.

    How difficult would it be for all people who have at some recent time enjoyed a smoke of Holy Herb to list their mobile phone numbers on a database.

    The first driver who spots, or gets pulled over, by these uniformed thugs we call police can simply send an SMS to the database managers, warning where the RDT unit has been set up, and instantly everyone on the database is notified by an automated text message. They can turn around, take another route, or simply pull over, park their cars, and walk past if it is near town.

    It won’t take long before the bored cops and their brain-dead political masters realise what a massive waste of time and money this all is – and that it has virtually no impact on road safety.

  11. Mandy lees says:

    You can have it in your system through your skin from ” secondhand smoking” inhalation ,it worked for a doctor friend of mine ,say you were at a party in a rather small room

  12. gus says:

    http://www.huffingtonpost.com.au/2015/09/12/police-drug-test_n_8097398.html
    “Of the 36,000 drug tests police have administered to NSW drivers in 2015, Insp Blair said almost 12 percent returned positive readings; while an operation in the Shoalhaven, on the NSW south coast, over the weekend netted 27 drug-affected drivers. In August 2014, NSW Roads Minister Duncan Gay said 11 percent of fatalities on NSW roads involved motorists with illicit drugs in their system.”

    Is it just me or does that actually indicate a slightly reduced chance of involvement in a fatal accident if you have illegal drugs in your system?

  13. It should not be illegal to be a stoner who drives a car. The test should be for impairment only.

  14. Mick says:

    I wish they would lift restrictions on Hemp …This is one industry that our farmers really need to establish now . The downturn in mining is going to see a lot of people out of work , the Hemp industry with its many uses is one good way to secure our food & material future ….

  15. earthlover says:

    The Ship of Fools we find ourselves adrift on continues to sail further and further from sanity.

    We need action because our society is aggro and messed up? Then let’s ban alcohol altogether, and note how many fewer motor vehicle accidents and fatal king hit assaults there are! Oh… but our politicians probably wouldn’t, in the main, enjoy being denied access to their choice of poison.

    What a ludicrous waste of money this saliva testing for the ‘presence’ of THC is! If there is a single less useful and more wasteful use of taxpayer dollars, I can’t begin to guess what it might be.

    Those who orchestrate and support this ridiculous and unjust procedure must have rocks in their head… or perhaps too much of their given choice of ‘legal’ poisons?! What a monstrous farce! The great shame is that, whilst scarce resources are frittered away on faulty and ill-reputed testing, real crimes are happening all around us, but OUR police force is being directed to elsewhere.

    Those who genuinely aspire to work for the highest good need to stop wasting our money and time on this absurdity and start doing something about the very real issues our society is facing!

  16. louie says:

    They CAN currently test for cocaine.

    The current 5S drug swab sticks listed on the pathtech website tests for cannabis, opiates, cocaine, amphetamines/methamphetamines/ecstasy.

    whilst the 6S swab sticks tests for cannabis, opiates, cocaine, amphetamines/methamphetamines/ecstasy, benzodiazepines.

    So why be selective and target the weakest of all drugs? just another ploy to push up statistics because they know if they REALLY tested for everything, Half or more Australians will be forced off the roads and statistically their OWN people will be caught just the same (cops, magistrates and lawyers oh and of course our political weasels).

    Baird can’t smile his way through this one.

  17. Les says:

    This is a faulty product, FULL STOP.

    Write to the manufactures of this exact test kit and they will tell you it is not 100%, even in lab conditions and that the police are fully aware of this.

    Out in the field it is even more unreliable, heat, ungloved hands etc.

    When the police produce a report which states one third of all tests are initially false positives, we have a problem Houston!

    Revenue raising, due to the reduction in Governement coffers through reduced drink drivers, hurts the hip pocket.

    These tests are banned in all other countries due to their unreliability. What? Did Aussie pollies in their wisdom just buy a few million cheap, faulty kits??

    Plus 600 plus over the counter drugs can produce a false positive, things like asthma sprays, antidepressants, antihistamines and antibiotics.

    Any court judge with evidence of their unreliability, a letter from the manufacturer stating its not 100% accurate, could not enforce anything other than a “not guilty” and a dismissal.

    This is a waste of tax payer dollars and a quick grab for cash, but sadly it affects people’s lives dramatically, financially and loss of licences, which could all be due to a false positive.

    People just need to plead not guilty if they are that, the madness will soon stop when the courts are clogged with the innocent, a faulty test, and evidence of that being the case.

  18. John May says:

    In 2012 there was an accident in Urunga involving a utility and a B double semi trailer. Two people died
    It is well known that the ute driver had a blood alcohol concentration of 0.24.
    What is virtually unkown is that the B double driver pleaded guilty to and paid the fine for having marijuana residues in his body.
    The coroner, upon receiving expert advice that the marijuana residues were so low as not to impair driving, discounted drug intoxication as a factor in the deaths.
    Is this not farcical?

  19. Bobby m says:

    So if the greens are so concerned about evidenced based legislation regarding drug use, why are they completely against evidenced based legislation with regards to firearms. It seems the ‘attack on a lifestyle choice’ they is deemed so unjust in this article, is the bread and butter of the greens firearms policies.

  20. Tony Ridler says:

    “Zero-tolerance”, has nothing to do, with change. If, we don’t get off the planet, we won’t know we’re alien’-;!

  21. Leomarie says:

    It’s not about driver impairment when you can be off your face on prescription drugs, have alcohol in your blood or driving home half asleep from a night shift and pass the road drug test…. While you will be arrested if you had some cannabis a few days before.
    We’re led to believe that it’s a different death when you loved one is killed by a driver impaired by a legal drug or lack of sleep. They’re playing politics with your life.

  22. FN FAH-Q (Far North Fella for All to Hear me cry QUEENSLANDER! says:

    I agree w/ just about everything everyone said but I thought of a different way to explain it to people.

    It is not a cash grab, its going to cost tens of millions…

    We are a socialist society. So why would you arrest people, take their licence for a year, put them back on P’s when (esp here in remote areas) it is enough to get fired and we are still in financial strife. I think one of our main concerns for the past going on a decade is we want MORE jobs. Why are our own officials getting us in trouble w/ work??? Also and this is the main point… Now people who ordinarily wouldn’t have to (being good hard workers) are going to be forced to go on benefits.

    Your job is to make sure business can operate and grow to create jobs (tax benefits), people can work (infrastructure and health), they can reasonibly expect to be safe, (regulations). That’s why we pay you. But if you do one e.G. regulations and it cancels out something else we pay you for you are kind of doing a half arsed job.

    Bottom line the drugs you are testing for are useless. And it’s costing us our livelihood esp when these people may not even have any of the substance on them stop putting us out of work so my mates don’t have to pay for me to go on dole. Cause that is literally all you are doing.

  23. FN FAH-Q (Far North Fella for All to Hear me cry QUEENSLANDER! says:

    Sorry edit. I mean one month loss of license. But that’s all my truck driver friend needed to be out of work. #justfixit #ACTcapitolnamechange #cantbearya

    Just be normal law makers, drug tests are fine if they are fair so I would include cocaine in test and positive result is probable cause for search. No charges issued without evidence of a crime BEING committed. Every school kid knows. NO HARM NO FOUL.

  24. Mary P. says:

    Well I am wondering if you have ever been busted before then you could use the defense that the molecules have been stuck for years. Would the onus be back on the crown to prove this was not in fact true?
    Would that be a fair assessment of this?

  25. bananas says:

    Not to mention that humans have an ENDOCANNABINOID SYSTEM! …

  26. Paul Recher says:

    Extract: “…the report concludes that the level at which cannabis impairs driving is a blood concentration of five micrograms per litre. ” Correction: 1) not litre but millilitre (ml.) 2) The DrugWipe in use for the initial saliva test records THC as low as 5ng / ml. 3) No one is impaired at 5 ng. Some states have stated 13.75 ng for impairment but the truth is no one knows. My money is 50ng is closer to real impairment

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