David Heilpern is an author and former NSW magistrate. Here, he reveals why Australia’s drug-driving laws left him administering justice he felt very uncomfortable with.

During my time in judicial office, I dealt with thousands of drug-driving charges. Enough to be able to say, without a doubt, that our country’s drug-driving detection laws are unjust, unfair and unhelpful.

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In New South Wales, and indeed throughout Australia, the cut-off level for testing positive for THC (the psychoactive compound found in cannabis) is five nanograms, while the cut off for prosecution is 10 nanograms. A nanogram is a thousand millionth of a gram. It’s a miniscule amount.

Throughout the thousands of cases I dealt with, the police were never able to allege that the person was showing any signs of affectation. They weren’t wobbling as they walked, they weren’t slurring their words, they didn’t have bloodshot eyes. Most, if not all, of the people who are prosecuted in NSW have a level of THC in their bodies that bears no connection to their ability to drive safely.

The drug-driving laws have minimum mandatory penalties, which don’t apply for a whole range of other offences including sexual assault, malicious damage or domestic violence. As a result of these penalties, I found myself administering justice that I felt very uncomfortable with.

David Heilpern
David Heilpern, author and former NSW magistrate

It’s worth keeping in mind that there is a separate offence of driving under the influence. If you are under the influence, if you are adversely affected by any drug, be it illicit or prescription, then you can be prosecuted. And so you should.

But drug-driving is a different matter entirely. Consider those people in the community who have been legally prescribed medicinal cannabis. These people need cannabis, but they need to drive too. Under the current laws, if they choose to do both, they risk losing their licence, or worse – if they continue to drive – time in prison.

The amount of time people need to wait between taking a dose of their medicine and driving is incredibly unclear. In New South Wales, the road safety website has previously claimed 12 hours, then it changed to 24 hours, and now it doesn’t offer any advice on timing at all. That’s because nobody knows how long it can stay in your system for at detectable levels.