The drug driving laws are immeasurably unfair: there’s no equivalent standard to gradate justice, compared with booze driving…and convictions have suddenly leapt upwards, Andrew Fraser reports.

‘Unfair’ drug tests skyrocket 238%

By ANDREW FRASER

Jeff, James and Jill are three Canberra motorists.

Jeff shares a joint of marijuana with a mate on a Saturday night at home and doesn’t drive until going to work on the following Monday.

James has a dozen schooners on the Saturday night and also doesn’t drive until heading to work on the Monday.

21-04-2015 8-31-44 AMJill has two bottles of wine on the Saturday night, hops straight in her car and gets picked up by police. She returns a Level 4 blood-alcohol reading and is facing an automatic three years’ disqualification from driving (reducible to a minimum of six months) and a maximum penalty of nine months’ jail and/or a fine of up to $2250.

Jeff and James both get directed into a random-testing queue by police on their way to work on the Monday.

James is waved through.  But Jeff is arrested – and faces being disqualified for as long as Jill (though without any jail penalty and a maximum fine of $1500).

Like James, he is unaffected at the time of driving, but, under ACT law, that doesn’t matter.

And the latest ACT Criminal Justice Statistical Profile shows that the number of people returning positive roadside random drug tests has skyrocketed 238% on a year ago. That is more and more people facing harsh penalties when many of them may well not be drug-affected at the time of driving. (The stated purpose of the law is to prevent drug-affected drivers getting behind the wheel).

The reason for the discrepancy between drink-drivers and drug-drivers is that alcohol and its effects can be accurately measured, allowing parliament to set particular penalties for drivers with particular concentrations of alcohol in their blood. Illicit drugs cannot be so accurately measured and the legislation requires only that a proscribed drug be found in a driver’s system for a prosecution to succeed. While alcohol leaves the body at a steady rate, other drugs, particularly cannabis, can remain in your system for weeks, and even months.

With drugs, it is a strict-liability offence: the police have only to prove that the drug was in your system and that you were behind the wheel.

While ACT legislation makes no distinction between Jeff and Jill, most magistrates are alive to the different scenarios that can lead people before the courts on a drug-driving charge, and can tailor their sentences to the individual circumstances.

The legislative situation is different across the border in NSW. Rather than the ACT’s operative drink-drive and drug-drive laws, which directly follow each other in the Road Transport (Alcohol and Drugs) Act, NSW has another charge that comes in between its main drink-driving and drug-driving sections.

This is Section 111 of the Road Transport Act 2013, prosecuting drivers for the presence of certain drugs (other than alcohol) in oral fluid, blood or urine. It carries a maximum penalty of a fine of $1100 and a minimum disqualification of only three months (automatic disqualification six months).

ENDS

* Andrew Fraser is a Canberra criminal lawyer with Armstrong Legal.

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2 Comments

  1. These drug driving laws infringe on my civil liberties, they are a direct attack on people who use illicit drugs yet only test for cannabis, methamphetamine and MDMA. I can come home from work on a Friday, take heroin, cocaine or choose from a phethora of prescription drugs and pass the saliva test on my way to work on Monday. Yet, God forbid I come home and smoke the evil marijuana!!! Everyone knows come Monday morning I’ll still be stoned! Fail the oral fluid test and risk my entire lifestyle! These tests are nothing more than another war on drugs movement, targeting harmless people who contribute to society and choose marijuana over alcohol or the fore mentioned substances. This is a disgusting way to treat people, utter disrespect for a persons rights.

    Justice
  2. Reactionary and draconian laws are always counterproductive.
    If people are going to be arrested and fined for a trace of a drug, rather than a defined limit that indicates impairment, many will say –
    ‘Stuff it. If I’m going to be fined for a trace I may as well be high as a kite. The punishment is the same’, and not bother waiting until the influence has worn off.
    – This is good for public safety ?

    Another issue is half life. Drugs with a short half life will become the new go to.
    So some cannabis users may go for ICE, or any other drug that becomes known
    as the one with the shortest half life, to lower the risk of testing positive
    within a shorter time frame.

    Bill Schulz

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