Why, you might ask yourself, is there roadside drug testing (RDT)? The answer on most people’s lips – that it improves safety on the roads and reduces accidents – would be the logical answer; yet former magistrate David Heilpern recently made it abundantly clear that this is not the case.
In a recent post ‘How to argue with those who support drug driving testing’ on the North Coast RDT Locations discussion Facebook page, Heilpern runs through the reasons why the RDT program fails the basic premise of improving road safety and is instead a program that is ‘unjustifiable’. And he is not alone in this argument. Echonetdaily also spoke to both Mick Palmer, former Commissioner of the Federal Australian Police and Northern Territory Police Force, and NSW Greens Drug Law Reform and Harm Reduction spokesperson, Cate Faehrmann, to explore the issue.
For all three the key issue is ‘impairment’, that is, at what level does the presence of drugs in a driver’s system impair the ability of the driver to respond, to reduce the risk of accidents when they are behind the wheel. This is also termed ‘affectation’. In relation to drug testing Heilpern points out that the current RDT program is not about determining someone’s ability to drive, as is the case with testing for alcohol, but rather it ‘is a prohibition measure’.
Doesn’t reduce road toll
‘If it was a road safety measure, it would have been ditched by now, because there is no evidence that it has had any impact on the death or injury toll at all,’ he says in his post.
‘When random breath testing, seatbelts, airbags and 50km speed limits were introduced, all had a noticeable, provable impact on the road toll. Not so with drug driving measures. And it is not surprising given that it does not test affectation.’
Mr Heilpern goes on to highlight that there is a separate, more serious offence, of driving under the influence that would be applied if a person’s driving was directly affected by their drug intake.
‘In the thousands of cases of drug driving I dealt with as a Magistrate, I did not see a single set of facts where it was alleged that the person was adversely affected by the drug. And this is not surprising, because if they were, they would have been charged with the other, more serious offence.’
RDT does not address driving ‘impairment’
Former Commissioner of the Federal Australian Police and Northern Territory Police Force, Mick Palmer, told Echonetdaily that while it is difficult to argue with the basic intent of Australia’s drug driving laws, it is disappointingly easy to pick fault with the outcomes actually being achieved.
‘Road safety and the road toll are, understandably, issues of serious concern to governments and the wider community, for obvious reasons,’ he said.
‘Drink and drug impaired driving are seen as significant contributors to our road toll problems, and this may be true. But the key word is “impairment” and where our current drug driving laws fail is that, whilst the laws address drug consumption they do not assess driving impairment. Indeed they make no attempt to do so.’
Yet, in the NSW Police Force response to Echonetdaily over Heilpern’s comments, they are still driving the line that their RDT program ‘is designed to deter drivers from drug driving and putting others at risk by getting behind the wheel after using drugs.’
A NSW Police Force spokesperson told Echonetdaily that, ‘Drugs can affect your driving skills and concentration, and over 20 per cent of total fatalities on NSW roads involve drivers with an illicit drug detected in their system.’
Heilpern responded to this point saying that, ‘It is true that drugs can affect your driving skills, and that those with detectable levels are over represented in the fatality figures. However, no road safety reports or academic articles draw a causative link between these two features and the road toll.
‘First, the detectable levels in coronial matters are not at levels that have any bearing to adverse driving – with cannabis, for example, it is two nanograms. Second, it should come as no surprise to anyone that a percentage of drug users are also irresponsible drivers.
‘The proof is in the pudding – if this regime were successful with 200,000 tests [a year] there would be a significant decrease in road trauma. No-one is claiming that.’
RDT not about road safety
NSW Greens Drug Law Reform and Harm Reduction spokesperson,
, drew links between the failed ‘war on drugs’ and the current roadside drug testing regime. Ms Faehrmann told Echonetdaily that it ‘has absolutely nothing to do with improving road safety and is… based on the dodgy idea that drivers should be punished for the mere presence of cannabis in their system, regardless of whether they’re impaired or not.
‘Drugs like cannabis can stay in a person’s system for days or even weeks after consumption. That means that someone who had a joint at a party a week ago could be convicted and even lose their licence when they are no more impaired than any other driver,’ she said.
Former Police Commissioner Mr Palmer highlighted to Echonetdaily that, ‘The discriminatory impact of this focus, particularly on people who are using cannabis for medicinal purposes, is regrettable, prejudicial, and counterproductive.
‘If we are going to reduce our road toll and, at the same time adequately protect those who need protection, we need to introduce better focused and more realistic drug driving provisions,’ he said.
Scrap RDT and test for impairment
Ms Faehrmann takes the call one step further, calling for the entire regime to ‘be scrapped until it can be replaced with an evidence-based approach that actually tests for impairment rather than simply the presence of a drug.
‘This [current] approach is wrecking people’s lives and costing enormous amounts of money, while being a massive drain on our emergency services and justice system,’ she said.
Mr Palmer says that compassion and care for people should be key to the policy.
‘Most people who use cannabis for medicinal purposes do so to relieve pain and trauma. The current law, which creates a criminal offence for driving with any trace of THC in the bloodstream, regardless of any evidence of driving impairment, and which, as a consequence, requires a person to desist from driving for five days after taking cannabis, is hugely prejudicial to [those] persons, and potentially creates very significant penalty and loss of insurance impositions on them.
‘If we are going to develop a balance between sensible and compassionate care for people who take cannabis for medicinal purposes and the control of dangerous and impaired driving on our roads, we have to be prepared to revisit and review our current laws. There has to be a better, fairer, more effective way.’
David Heilpern’s How to argue with those who support drug driving testing
From the Nth Coast RDT Facebook discussion page
We are now at 200,000 tests each year in NSW. That is a frigging big number. I have spoken in the press for a solid three months. Not one word of justification from the police or the road safety gurus. And that is because it is unjustifiable. Here is a response to those mythical people (do they exist?) who seek to justify the current practices around Australia.
1. But it’s random, so your chances of getting caught are minuscule.
It is not random. First, the police utilise number pate recognition to identify and test ‘suspicious’ vehicles. This of course includes vehicles where the driver has previously been in contact with the police and even more those who have previously been dealt with for drug detection driving. Second, the testing sites are often set up outside music festivals and in areas where drug use is high. And let’s not even talk about Mardi Grass blanket testing.
2. It’s a road safety measure.
It is not a road safety measure – it is a prohibition measure. If it was a road safety measure, it would have been ditched by now because there is no evidence that it has had any impact on the death or injury toll at all. When random breath testing, seatbelts, airbags and 50km speed limits were introduced, all had a noticeable, provable impact on the road toll. Not so with drug driving measures. And this is not surprising given that it does not test affectation – see 3 below.
3. It stops people driving under the influence.
There is a separate offence of driving under the influence. In the thousands of cases of drug driving I dealt with as a Magistrate, I did not see a single set of facts where it was alleged that the person was adversely affected by the drug. And that is not surprising, because if they were, they would have been charged with the other, more serious offence. Besides, the testing levels are so low they do not equate to affectation at all – unlike alcohol.
4. But it’s illegal anyway to use illicit drugs.
That is true for some, but not for all. Cannabis is now prescribed widely in Australia with the approval of every government in the country. Even those with a prescription are subject to these laws. But also is it not illegal to use cannabis in many places in the world or in the Australian Capital Territory. I saw many people who had returned from these places days ago, and yet were still detected under the current regime. They had not committed any crime. Secondly, there are lots of things that are illegal (rape, murder, theft, domestic and family violence) and of course none of these lead to a loss of licence.
5. Death and Injury stats show that illicit drugs are the major cause of deaths or injuries.
This is false, and studies that seek to prove this are either anecdotal or unreliable. The major substance cause of death or injury is in order alcohol and prescription drugs. There is one study that seeks to connect high rates of cannabis detection in those who have died in motor vehicle incidents with road trauma. However, this study specifically does not make any causation claims, and the detection levels are 2 nanograms, which no one seriously suggests has anything like a negative influence on driving.
6. But it’s only a traffic offence – you don’t get a criminal record.
This is not true either. Although there are some differences between states, in essence any conviction (or even where the offence is found proven, but a conviction is not recorded) still has significant impacts in employment, insurance and travel. You also, no matter how it is defined, have a police record and court record of the suspension, fine or disqualification.
7. Well, it discourages drug use, and that must be a good thing.
It discourages some drug use, particularly cannabis. It does not discourage alcohol, prescription drugs, opioids including heroin, LSD, magic mushrooms or many synthetic drugs. Also, cocaine is not tested in some States. Given that cannabis is fat soluble, and remans in the system for so long, it also encourages use of amphetamines and cocaine, because although they are detectable, the word on the street is that you are clear of those within 48 hours. And that is probably correct. I have yet to see a public health argument that supports these drug choices over medicinal or responsible use of cannabis.