Lismore magistrate David Heilpern has questioned the NSW Government’s claim that cannabis can only be detected in a person’s saliva up to 12 hours.
With local court lists featuring an average of 50 people on a list day, Mr Heilpern said he had heard from hundreds of drivers over the past few months who claimed to have waited days, if not weeks, before driving after using cannabis.
The NSW Government Centre for Road Safety website advises motorists that a saliva test would ‘typically’ detect THC for up to 12 hours after use.
According to the ABC, Mr Heilpern on Monday noted that the word ‘typically’ had been added after his recent decision to acquit of a man of a drug driving charge because he claimed to have not smoked for nine days before testing positive.
Joseph Ross Carrall was found not guilty of driving with an illicit drug in his blood because he mistakenly believed he would no longer test positive for the drug.
On Monday, Mr Heilpern said when the Road Transport Legislation Bill was introduced in 2006, “Parliament did not intend to stop people from driving or take away their licences three days or six days after they had consumed cannabis”.
‘It is clear … ministers had in mind that it would be drugs that were ‘active’ and ‘affect the skills’ that were the mischief,’ he said.
He made the comments while placing two men on two-year good behaviour bonds after they had claimed to smoking more than 12 hours before being pulled over by police.
NSW Greens MP David Shoebridge said the judgements were further proof of the Government’s “evidence-free” approach to drug policing.
‘If they have any evidence to support their claim that cannabis leaves the system after 12 hours, it needs to be presented to the court. They need to put up or shut up,’ he said.
NSW Roads Minister Duncan Gay issued a statement saying it was ‘illegal to drive with the presence of illegal drugs in your system — it is that simple — if you are caught drink or drug-driving the law is clear’.
He said in 2014, 16 per cent of fatalities involved drink-driving — the same proportion as those that involved drivers with illegal drugs in their system — which is why the Government was tripling drug testing.
‘My advice is don’t take illegal drugs and if you do, be responsible and conservative with your decision of when it is safe to drive to avoid the consequences of drug-driving charges or worse, harming innocent road users because you are impaired,’ Minister Gay said.
Meanwhile, Lismore lawyer Steve Bolt has issued the following information:
It is an offence to drive with THC present in your saliva. Police can stop a driver for no particular reason and require them to provide a saliva sample. If there is any amount of THC found in the sample, the charge is made out.
The police do not have to prove that you were impaired to any degree in your ability to drive. And the police do not have to prove that you intentionally drove with THC in your system.
But it is a defence to the charge if you honestly believed that you did not have THC in your saliva at the time you drove and that there was reasonable basis for you to hold that belief.
That is, the court must accept that you genuinely believed what you say you believed. The court must also decide that an ordinary person would consider it reasonable to believe that there would be no THC present.
The NSW Government Centre for Road Safety website (www.roadsafety.transport.nsw.gov.au) states that the period of time that drugs could be detected ‘depends on the amount taken, frequency of use of the drug, and other factors that vary between individuals’. The website goes on to say that the saliva test would ‘typically’ detect THC for ‘up to 12 hours after use’.
A defence of honest and reasonable mistake of fact might succeed where the driver satisfied the court:
- they believed that the period of detection was up to 12 hours;
- they obtained that information from the Centre for Road Safety website or a similar official source;
- they believed that they were a ‘typical’ cannabis user, so that the advice applied to them, and they acted on that advice
- it was significantly longer than 12 hours (for example 18 hours or more) between the cannabis use and the driving, so that they allowed a margin for error
Once the defence of honest and reasonable mistake of fact is raised, the prosecution must prove beyond reasonable doubt that the driver did not honestly have such a belief or that the belief was not reasonably held.
Obviously, the court would decide on those issues in the particular circumstances of the evidence in each case.