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September 21, 2021

Retired Magistrate slams ‘nonsensical’ roadside drug testing laws

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Paul Bibby

A recently retired Northern Rivers magistrate has described the state’s roadside drug-testing laws as ‘nonsensical and cruel’, revealing that they were a major factor in his decision to hang up the gavel.

In a scathing attack on the controversial testing regime, David Heilpern told The Echo he had struggled to enforce the laws in ‘good conscience’ because he saw them as ‘extraordinarily unfair’.

Recently retired magistrate David Heilpern. Photo Jeff Dawson

‘I did what I could within the limits of being a judicial officer to ensure that the unfairness of it all was reduced to the extent that I could,’ Mr Heilpern said.

‘But it became increasingly difficult for me to apply a law that I saw as unnecessarily destroying people’s lives.

Under the State’s roadside drug testing laws, first introduced in 2006, drivers face an automatic loss of licence if they record a positive test, regardless of when and why they used the drug, and whether or not their driving was affected.

‘There’s 200,000 roadside drug tests that will take place in NSW this year,’ Mr Heilpern said.

‘Very few if any will detect people who are adversely affected by drugs.

‘It’s a detection based on minute quantities that bare no relationship with being affected.’

Mr Heilpern, who worked as a magistrate in the Northern Rivers circuit for much of his 21 years on the bench, said that the laws unfairly impacted the hundreds of thousands of people who used cannabis for medicinal purposes.

‘To punish these people for taking either prescribed or non-prescribed medicine is absurd,’ he said.

‘Every week in court I would have people literally crying because, as we know, loss of licence in the country can mean loss of job, loss of income, loss of family.

‘It is catastrophic for many people, and yet you don’t lose your licence for rape or murder, for assault or family violence offences.’

‘I’ve got a friend who’s dying of cancer and he says the worst thing is the loss of freedom to be able to drive around because he’s on a prescription for cannabis for his nausea.

‘He doesn’t want to die a criminal in court.’

The State government has, to date, been unable to provide any solid statistics demonstrating that roadside drug testing has reduced the road toll.

‘Where would the loss of political capital be in excluding those who’ve got a prescription for cannabis from the prohibition on driving with a detectable level?’ Mr Heilpern asked.

‘The only real justification that I can see is a last gasp of prohibition.

‘It is designed, in truth, to limit illicit drug use, but the measure is just extraordinarily unfair.’

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  1. I understand why David Heilpern feels the need to retire, but this is a great loss to our community of a fair and decent man & judge. I hold David in very high esteem & am deeply grateful for the assistance he gave me when he was a solicitor in Kyogle many many years ago. He has been a champion of our community for decades. I’m also grateful to him for publicly speaking out regarding this highly unjust situation. It needs to change… i wish David great joy & success in his future endeavors, knowing he is greatly appreciated by many in our communities…

  2. When you hear truth it rings loud and clear … coming from this man (who’s compassion I have been a recipient of) its a veritable clanging of the absurd and unjust policies of the current NSW Govt. who continue to ignore advice from people much smarter than they are… but that wouldn’t be hard would it ?

  3. Thanks so much for speaking out. This kind of injustice, a sort of mental, economic, and in some cases physical torture, is infuriating. More so when people who do far more damage to people and society, such as promoting and dealing dangerous pharmaceutical drugs or fossil fuels, and associated addictions to them, that poison our bodies and common environment and kill millions every year around the world, go free and are rewarded.

  4. Great to read this from someone with cred. All the cannabis experts are criminals which is a bit of a problem for the authorities i guess. Pity about the third last para which would mean we have to buy very expensive imported indoor grown irradiated weed to legally drive, rather than grow our own.
    The current drug driving laws are changing drug trends in Oz. Weed stays in your system for days after all others are long gone.

  5. Noooooo!!!
    David Heilpern was one of the last bastions of justice, fairness and common sense in the courts.

  6. David could not have put it better. I applaud his comments and thank him for speaking out on behalf of people who are sometimes marginalised for the wrong reasons.

  7. We have lost one of our few fair minded magistrates. Thank you for your magnificent work over all those years David.

  8. I don’t use drugs of any kind but Mr Heilpern, I totally agree with your comments regarding roadside drug testing.

  9. The WAR on drugs is a farcical justification of the far right’s inept response to the ‘new’ paradigm of societal change that occured in the 1960’s.
    When it was realised that we were being sold the lie, that nicotine and alcohol were culturally normal,anything your doctor prescribes is beneficial while, harking back to the time of witch burning, any use of naturally occuring herbal remedies , were the work of the Devil.
    The criminalisation of Hemp is now widely accepted as the need to find employment for the no longer required prohibition police force in the 1`920’s, and an excellent excuse to target Blacks and Hispanics in the good ol’ USA , who then made this a condition of any subsequent treaty with America, thats where this pathetical grovelling country’s law originated and has continued long after the majority of the states in America have legalised cannabis .
    Go figure, G”)

  10. It was very refreshing to read some clear, learned comments about the draconian cannabis road testing laws and to hear first hand from a prominent, compassionate and wise member of the law profession how cruel, socially destructive and unjust this testing regime is. As a free and law abiding person who has a high respect for my environment, my community and who, like many thousands of others uses CBD oil I am disturbed by the cannabis laws and the effect they have on my life. I feel persecuted by a minority’s ideology, against a plant! Does that not sound absurd. Each time I drive or ride I feel like I’m playing Russian Roulette. Insanely unnecessary policing I believe and this law should be challenged.
    I’m sure David will continue to be involved in the legal profession in his ‘retirement’ and no doubt be a very welcome asset to our communities in the Northern Rivers

  11. David what a hard decision after so many years of principled extraordinary hard legal work! Also a blow to principled medical practitioners who alleviate human suffering by prescribing a non toxic remedy. An attack on Civil Liberties and a further victory for Corporate Drug Companies!

    I am sure you will enter a ‘new path’ that will be of great service to humanity. Can we expect a Book that will revolutionize society.

    Your legal imprint will not be forgotten. All the very best for the future.

  12. In roadside testing, the critical issue is driver impairment.
    Roadside swab tests do not assess driver impairment and have not been shown to reduce the road toll.

    I have seen our magistrate, Mr Heilpern, while still on the bench, directing those who tested positive to choose between driving and using, but now, congratulations to Mr Heilpern for leaving the bench and speaking out against injustice!

  13. Might I suggest one and all read Chasing the Scream by Johann Hari.
    Fabulous, informative, frustrating read, unfortunately doesn’t change anything.
    I’d never heard of Anslinger, head of the Federal Bureau of Narcotics in the US and that’s where it all started.
    Hats off to you David Heilpern, a serious loss for rhe community. The voice of reason ??

  14. I don’t think anyone should be driving with ice etc but how many deaths have come from pot.There are people suffering from cancer and it helps them but as you said we are not game to drive totally unfair.

  15. I don’t know you personally David, however I certainly respect you Sir.
    Inspirational to say the least.
    I represented the Drug Law Reform party in the 2016 election. It’s reassuring to hear your echos of thought. I hope you can make change outside your court and help save peoples lives.. Because there is more damage to families, community’s and society in general than any thing good that the ‘The war on drugs’ , has ever facilitated.
    Go DAVID!!

  16. Before the last state elections,
    Sue Higginson proposed
    “Fit for purpose drug laws.”
    She gave a full description of why the current laws are not working and how they need to be changed.
    She was extremely articulate.
    That night the media put up a news report.

    Greens soft on drugs,
    Nationals are tough on drugs.
    Extreme media bias.

    Absolutely appalling.


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