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Byron Shire
September 18, 2021

Roadside drug-testing flaws exposed in local court case

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A major inconsistency in the state’s roadside drug testing regime has emerged during a Lismore court case, with the police’s leading drug test expert stating that cannabis consumed via capsule cannot be detected through a roadside saliva test.

Dr Judith Perl of the police’s Impaired Driving Research Unit made the admission while giving evidence in a case in which a local woman pleaded not guilty to driving under the influence of cannabis on the grounds of honest and reasonable mistake.

When questioned in general terms about the effectiveness of the police’s oral testing method in detecting different types of cannabis consumption, Dr Perl said: ‘if it is ingested it will disappear out of the oral fluid very rapidly, or if it is ingested in a capsule form it will not even be detected [at all]’. 

There is growing disquiet about the NSW drug driving testing regime. (file pic)

The magistrate, David Heilpern said this evidence had ‘obvious implications for the efficacy of the state’s drug driving regime’.

‘The uncontradicted evidence of Dr Perl is unequivocally that if you take THC orally by capsule or by suppository then it is not possible to have a level of THC detectable in oral fluid,’ Mr Heilpern said.

‘Whatever the raison d’être of this legislation, the only available conclusion from government’s own expert is that criminal liability depends on the mode of intake.

‘It is inconceivable that parliament intended that those who smoked, or ate a cookie, could be caught, and those who “shelved” or swallowed a capsule could not.’

Magistrate Heilpern said this also means that someone could be significantly affected by cannabis, but escape detection by police because they had taken a capsule, while a person who had smoked cannabis 24 hours earlier and was no longer affected, would face prosecution.

NSW Police minister David Elliot refused to comment on the inconsistency when contacted by The Echo, instead passing the questions on to the NSW Police Media Unit. 

NSW Police also dodged The Echo’s questions, with a media unit manager saying only that ‘NSW Police will review this matter before making further comment’. 

The roadside drug-testing regime has been widely criticised for punishing drivers who took illicit substances days or even weeks before getting behind the wheel and are no longer affected. 

Cannabis can be detected in the urine of a frequent user up to 30 days after consumption, and around three days later for infrequent users.

The NSW Greens have called for major reforms to the system, with their spokeswoman on drug-law reform, Cate Faehrmann, branding it ‘arbitrary and unreliable’. 

‘Imagine losing your licence for driving after having a beer a couple of days ago,’ Ms Faehrmann told a press conference in March.

The woman accused of driving under the influence of cannabis in the Lismore case was acquitted after the prosecution was unable to disprove her defence. 

Magistrate Heilpern found the woman ‘had an honest belief that she was not driving with THC in her system’.


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29 COMMENTS

  1. It is time to review drug testing in the light of people taking cannabis for medical reasons. If it does not impair driving then they should legally be able to take it providing they have a letter from their doctor stating what they are using medicinal cannabis for, which should be exempt from testing. They have proven that the medicinal cannabis does not impair driving as most times there is no THC in it or very little.

  2. I want my license back now. Right bloody now. I told the judge I believe I was not driving with thc in my system. The bastards still punished me for 12 months. I smoked a joint at 5pm Sunday and got busted for it at 5pm Tuesday on my way home from work

  3. If u read the whole 72 page Monash university report into driving whilst stoned u will discover that statistically your way less likely to have an accident than not being stoned let alone drink driving. The only thing they can unequivocally say is your ability to judge distances when overtaking is impaired.

    • Many drugs were prohibited, including cannabis for reasons other than their dangerous qualities – mainly based on racism, fear, powerful international pressure and vested interest – read From Mr Sin to Mr Big. These laws are wrong and unjust. Too many have suffered from these laws including people who dont use them through the cost of it all. A bit like laws that put homosexuals in jail or took aboriginal children from their mothers. These laws are wrong and need to be recognised as such.

    • Only in SOME Australian States.
      Old boy old boy What you gonna do?
      What you gonna do when they come for you?
      (Its a reggae song, in case that passed you by too!)
      LULZ.

  4. There is good evdience that cannabis impairs driving and correllates with MVAs. If the Greens want to change the existing regimen they should outline an affordable workable alternative that will ensure other motorists and vulnerable road users like me on my bike are not at danger from drug affected drivers. Regardeless of how we best control it, the Greens need to more actively discourage drug driving. and stop pandering to their cannabis usiing supportes.

    • Cannabis is a substitute for numerous pharmacutacals. Ignorance and hysteria of these facts is the only reason it’s illegal. The synthetic drug industry kills so many, but they hype up the “dangers” of cannabis to distract us from the real dangerous drugs.

    • You have absolutely NO idea about what you’re talking about Peter H. This is the problem. We have people making statements that have zero credibility or fact associated with them as they are made from pure emotional positions. Seriously peter before
      Making such statements you need to do your research!

    • Ohh and another thing Peter, drivers that are tired are just as dangerous as drunk drivers or drivers that have smoked weed. Then we should talk about the drivers under the influence of opioids (prescribed) or other prescription medication!

    • Many studies were done years ago in The UK, Europe and Australia all with the same conclusion … it makes you drive slower and more carefully on Pot alone, not mixed with grog. All results ignored … Big study in the USA shelved because they didn’t like the result …. Keeping Pot illegal is a hoax, and adding it to the list of banned substances when driving is just another revenue-raising trick. Full Stop.

  5. My husband cannot take any pain medication as he has a inherited liver disease also he had highest level of iron in his blood on Australia so all his joint’s are going. So the only thing that gives him relief from chronic pain is a cookie. So many people out there need it for many reasons not to get stoned. So we run the risk of being prosecuted. And he has no other answers for his pain. His Gastroenterologist said it was the best thing he could do.

  6. It would be interesting to read the full details on this case. What was the argument that got her off. How did she get the police expert to testify?

  7. I got tested for pot about 2 years ago in Byron. I passed because I don’t use. But when l asked if the plastic stick gets reused , the cop said no. AND each test cost $40!!!!! That to me is the worse part about it!

  8. Wake up people cannabis is a herb not a drug. It was widely use in the medical industry long before the big pharmaceutical companies took over and had it outlawed because it is a cure for many illnesses including cancer. Your great grand parents mostly likely used it often for many ailments. Baning its use and treating people who use it, many who use it for pain relief (with no side effects unlike most chemical drugs) should not be treated as common criminals.

  9. Pharma – pharma everywhere & revenue bucks have
    a lot in common. Cannabis is a herb – a weed that
    works. Ask any sane medical practitioner.

  10. So until we have a test case that shows impairment in driving as being the proof of impaired driving, the drug tests won’t bring down he road toll. If in a court the best evidence rule does not apply to testing for THC particularly, what’s the point. The drug testing misses drivers who are over tired, on some pharmaceutical that doesn’t show up, or too old and doddery to drive. Many more than THC I’m betting. Solution? Test driving skills on a simulator. Police already have the capability to do this…they have roadside caravans that are stuffed with equipment to catch drugged drivers. Why can they not have simulators in there and catch ALL of the drivers with reduced reaction time, bad decision making etc. This is what the best evidence rule says….you can’t produce photocopy in court, they want the original or a certified copy. So why are we left in the situation that A= B=C=D, when we could have A=A? In other words, THC concentration in saliva is related to blood levels, and blood levels are related to levels in the cerebrospinal fluid which are related to impaired driving. So four steps removed from just measuring what it is meant to measure….impairment. Why is heresay not allowed in court? Best evidence rule says we want the evidence from the horses mouth, so what’s the difference?
    Test what you are supposed to test, driving impairment, not THC content in saliva. Then the police would catch 5 times more I’m guessing

  11. How come no one has acknowledged that since the advent of these expensive tests that there are more recreational drug users on the roads who have switched to other drugs that are infinitely more dangerous than even prescription drugs? It seems exponentially so if you include the costs of all the court cases – for tests that also seem to be arbitrary at best.

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