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Drug-driving acquittal in Lismore puts law in limbo

The ministers pushing the controversial roadside drug-testing laws: NSW premier Mike Baird, left, police minister Troy Grant and roads minister Duncan Gay, right.

The ministers pushing the controversial roadside drug-testing laws: NSW premier Mike Baird, left, police minister Troy Grant and roads minister Duncan Gay, right.

Controversial roadside drug-testing laws in NSW have been left in legal limbo following the acquittal by a Lismore magistrate of a man who tested positive for cannabis he had smoked nine days before he was pulled over by police.

The decision by magistrate David Heilpern on Monday was seized on by the Greens, who have been campaigning against the contentious law, saying they want drivers to be tested for impairment levels rather than just the mere presence of cannabis in saliva.

MLC David Shoebridge said the judgement was significant and had thrown the government’s roadside drug-testing campaign into disarray.

The magistrate found Joseph Ross Carrall not guilty of driving with an illicit drug in his blood because he mistakenly believed that he would no longer test positive to the drug.

ABC North Coast reported that Mr Carrall was pulled over for random drug tests in May last year when the police officer testing him told told him he should wait at least a week after smoking cannabis before driving.

Mr Carrall said he relied on this advice when, in June, he waited nine days after smoking cannabis before he got behind the wheel but when he was pulled over again, traces of THC were detected in his saliva and he was arrested and charged.

The ABC report said a police officer told the court that ‘a line had been drawn’ and that now you could be ‘a smoker and not drive, or a driver and not smoke’ and that that was the ‘effect of the new laws’.

But Mr Heilpern said when drug testing legislation was introduced in 2006 it was clear that ‘ministers had in mind that it would be drugs that were active and affect the skills that were the mischief’.

The ABC quotes Mr Heilpern telling the court that ‘Clearly, in 2006, the technology was not nearly as advanced as it is now, certainly it was not the aim of the ministers that if you consume cannabis [at all] you cannot drive [ever].’

Mr Heilpern, according to the report, said no-one was seriously contending that Mr Carrall was still affected by the drug.

He found Mr Carrall not guilty on the grounds that he had made an ‘honest and reasonable mistake of fact’.

Mr Carrall pleaded guilty to the same offence, committed in May, and will be sentenced on a date to be fixed.

Mr Carrall’s lawyer, Steve Bolt, told the ABC that the law should be designed to improve roadside safety, not punish people for smoking cannabis.

’It’s wrong, in my view, to be punishing people [by] taking their licences away when someone might have a had a smoke or two of cannabis a few days before driving a car, he said.

’It makes as much sense as taking someone’s licence away for having a beer two or three days before driving a car.

‘Unfortunately a lot of people would be at risk of falling foul of this legislation even though their experience of having used the drug would have had zero effect on their ability of driving a car safely, Mr Bolt told the ABC.

Mr Shoebridge said the judgement was significant because ‘we’ve had case after case after coming before the courts, thousands of cases in NSW alone — where people have said “I smoked a joint a day ago or a week ago and it couldn’t have possibly impaired my driving and now you’re going to take my licence away from me?”‘.

‘Up until now people have been thinking 48 hours or a week is safe to drive,’ the MP told the ABC.

‘They’ve been operating on that basis, thinking they are complying with the law but yet finding they can just randomly lose their licences at one of these roadside drug tests.

‘This is giving ordinary people who are trying to comply with the law a chance to fight back and keep their licence.’

Mr Shoebridge said legislation should be modelled on laws in the UK, where drivers are tested for their level of impairment.

He said he would be pushing for a parliamentary committee to examine the drug testing legislation.

A spokeswoman for NSW roads minister Duncan Gay  told the ABC the NSW government said it had a zero-tolerance policy when it came to drug-driving.

The spokesman said roadside tests were followed up with laboratory tests and 97 per cent of tests ‘matched’.

She told the ABC the research they had indicated drugs were only detected in a person’s saliva for 12 hours after being ingested.


22 responses to “Drug-driving acquittal in Lismore puts law in limbo”

  1. Derek Harper says:

    That would mean that since the spokeswoman for NSW roads minister Duncan Gay told the ABC the research they had indicated “drugs were only detected in a person’s saliva for 12 hours after being ingested”, you’d be entitled to believe you wouldn’t be breaking the law if you drove after 13 hours.

    • aidan says:

      yes that’s pretty much how it is, if we honestly and reasonably rely on the governments advice then we may have a defence, but 13 hours would be pushing it a little

  2. Michael Balderstone says:

    Derek Harper is making sense to me with that conclusion above and I also heard some ‘expert’ on the ABC today say the Police ‘assess’ wether to test a driver for drugs or not when they are pulled over. Time they stopped using the word random as it never was random, in fact its a blatant lie isn’t it?

    • Paul Wilton says:

      It’s hardly random. Many people have told me how ‘straight’ looking people only get tested for alcohol, while those with long hair &/or beards get tested for ‘drugs’.

    • Khary says:

      Rbts are an open trough for police to stop anyone on the road without thd need for reasonable cause/suspicion whereby rhey can go fishing for any added charges they can lay.

      Interesting thing about observations, without all the info surrounding the circumstances, ….they are just that. Observations. Im hypoglycemic and a few of the symptoms leading up to an episode mirror inebriation such as slurred speech, confused thinking and loss of coordination.

      Police are trained to tell the difference, exactly how? Course they wont believe you.

    • Pat Angel says:

      They don’t call it random Micheal, it’s MDT – Mobile Drug Testing. They have never tried to hide the fact they are specifically targeting people such as motorbike riders, hippies, gypsies and those of us that don’t look ‘normal’ FTP

  3. lynn ashcroft says:

    This is ludicrous as is the spokeswoman for the NSW minister Duncan Gay who told the ABC the nsw govt had zero tolerance when it came to drugs…..she should of said zero tolerance to what they deem illicit but not the mind altering drugs prescribed by Drs all over the countryside to Mr and Mrs ordinary everyday folk, or are they blatantly not willing to look at the statistics relating to prescribed medication, who incidently drive…Baird and his nanny govt have lost the plot its laughable but nonethe less predictable

  4. lynn ashcroft says:

    What prejudice would police employ in their assessment and decision to drug test somebody…..no doubt that guy in the suit and nice car, associated with a local business better watch out. lol

  5. Chibo Mertineit says:

    How can the spokeswoman say ‘that the research had indicated drugs were only detected in a person’s saliva for 12 hours after being ingested’ when Mr. Carroll had Thc detected in his saliva 9 days after using Cannabis. How can that be? So will Magistrate Heilpern now revisit all his verdicts, where people lost their license, their job and their life, after driving 2 or 3 days after consuming Cannabis. How will our justice system compensate the victims of these so called RANDOM drug tests.

  6. Doug says:

    Mr Gay: Please publicly release the data the testing was based on so others can critique the findings.
    Personally, I think it is ridiculous that Cannabis is tested, & Cocaine is not. Would this have anything to do with the Wealth of Cocaine users (who might vote Conservative.)

    I state that I am not a drug user, so need not fear this ridiculous law. I feel for the elderly in pain that might be using Cannabis as pain relief. Will Medical Cannabis use be exempt?

  7. Dumbdumb says:

    Stupid laws and inconsistent testing I know many people who have not returned positives when they definitely should have..

  8. Mic says:

    This whole thing is just another way for the man to make more money…..Next thing they will be testing random people walking the street or down the beach….Dammm why don’t they just go house to house ??…Anyway (rant over) based on the the premise that the police seem to be actually testing one for no reason (ie not impairment) if I were to be charged with this offence I would request my lawyer to ensure everyone involved in the process of charging me had been saliva tested including testing officer duty officer anybody who handles the sample the magistrate court officers and prosecutors and of course my lawyer. After all we must have a level playing field ???

    • Khary says:

      The law empowers their actions. No need for cause or suspicion.

      Road Transport Act 2013 No 18 [NSW]
      Schedule 3 Testing for alcohol and drug use

      Division 2 – Random breath testing and breath analysis
      3 Power to conduct random breath testing
      (cf STM Act, s 13 (1) and (3A)-(5))
      (1) A police officer may require a person to submit to a breath test in accordance with the officer’s directions if the officer has reasonable cause to believe that:
      (a) the person is or was driving a motor vehicle on a road, or
      (b) the person is or was occupying the driving seat of a motor vehicle on a road and attempting to put the motor vehicle in motion, or
      (c) the person (being the holder of an applicable driver licence) is or was occupying the seat in a motor vehicle next to a learner driver while the driver is or was driving the vehicle on a road.

      (3) Without limiting any other power or authority, a police officer may, for the purposes of this clause, request or signal the driver of a motor vehicle to stop the vehicle.
      (4) A person must comply with any request or signal made or given to the person by a police officer under subclause (3).

      Division 3 – Random oral fluid testing for prescribed illicit drugs
      6 Power to conduct random oral fluid testing
      (cf STM Act, s 18B (1), (4) and (5))
      (1) A police officer may require a person to submit to one or more oral fluid tests for prescribed illicit drugs in accordance with the officer’s directions if the officer has reasonable cause to believe that:
      (a) the person is or was driving a motor vehicle on a road, or
      (b) the person is or was occupying the driving seat of a motor vehicle on a road and attempting to put the motor vehicle in motion, or
      (c) the person (being the holder of an applicable driver licence) is or was occupying the seat in a motor vehicle next to a learner driver while the driver is or was driving the vehicle on a road.
      (2) Without limiting any other power or authority, a police officer may, for the purposes of this clause, request or signal the driver of a motor vehicle to stop the vehicle.
      (3) A person must comply with any request or signal made or given to the person by a police officer under subclause (2).”

  9. Odette Nightsky says:

    So you can get shitfaced on a friday night at the pub and drink as much as you like and on saturday night when you get pulled over all is well. But if you smoke a joint….your done? This is so wrong. I would have no issue driving with someone who had a smoke and was used to it. How about a test like the booze test. If your under your fine??

    • Possum says:

      There you go !!! My sentiments exactly this is so true . America has long used the impairment method , walk the line straight etc…. Our laws are ridiculous . Ice and heroin destroy families , ruin lives and actually incites violence and theft ! Someone who likes to kick back and relax , relieve their aches and pains , quell nausea and other health problems with a little green herb straight from Mother Earth is now in danger of having their licences cancelled cause the indulged over a week ago ……. Cum on we must make a stand and unite . This is injustice at its ultimate unfairness as the higher socio economy people can slip thru the cracks doin as one famous ball player says ” liney lineys ” it’s just so bloody wrong !

  10. Michael Kaer says:

    We have cannabinoids in our system. We MAKE cannabinoids in our body. Can someone, ANYONE tell me how a machine can tell the difference between what is made in our bodies and what has been ingested. No? Well there you go, the test is CRAP and so is the law.

  11. greg says:

    always plead not guilty and if you get pinched in melb the cops say wait 24hrs then you will be right to drive

  12. Kay says:

    I was suspended for 6 months under similar surcumstances, however I actually avoided a collision with another vehicle, later proven to be not my fault, however was tested by blood and found to have “negligent amount of canabis in my system” I had smoked a joint with a friend 5 days earlier.. When I went to court and pleaded guilty (as advised by my lawyer) the judge almost laughed, however advised me that he by law needed to suspend me even tho it was quite clear the police officer and judge disagreed…

  13. Notme says:

    As a long term smoke I have this to say. After giving up, I had a urine drug test. Two weeks later I had another and my THC levels had actually gone up. At 42 days, I still tested positive for cannabis.

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