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.
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.
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.
Being charged with a drug-driving offence is incredibly disempowering. It makes people totally dependent on others. Ubers or taxis can get very expensive, and for those who need to drive for a living, it simply means they can’t work at all.
For those who live out of town, it means they are completely isolated. For those who live in rural areas and need to travel significant distances to the doctor or hospital, it means they can’t get that specialist medical attention. So we’re talking about really serious impacts on people’s lives, often for a level of THC that causes absolutely no impairment.
There are three main arguments against my position. The first goes something like: “But these drugs are illegal! You do your crime, you do your time.” My answer to that is twofold. Firstly, cannabis is illegal for some, it’s not illegal for those who are on prescription medication.
It’s also not illegal, for example, if you have a joint, then get on a plane and come back from Portugal or the United States or lots of places in the world and drive in the next week or so. And of course, if I’m driving to Melbourne and I drop off in Canberra on the way through and have a joint, well that’s not illegal either because it’s been legalized in Canberra. So the short answer is it’s not illegal for some.
But even if it is illegal, there’re lots of things that are illegal. Domestic violence is illegal, breaching a domestic violence order is illegal, murder, sexual assault… all of those things are illegal and yet nobody loses their licence for those. It would be a ridiculous proposition if they did.
The second argument goes: “These people are a danger to the community.” If that were the case, the tens of thousands of people who have now lost their licence would have resulted in a lowering of the road death toll.
Following the introduction of random breath testing for alcohol in NSW in the early 1980s, there was a significant and continuing drop in the road toll. However, since the ramping up of drug tests about five years ago, there has been nothing similar in the state.
One final argument against my position is that people with cannabis or other illicit drugs in their system show up in a very high proportion of those who are fatalities or in car accidents.
That is true. They do show up in significant numbers when there’s fatalities or serious accidents and they get blood tests. But the cut off for that is two nanograms. There is no causation that has been shown between people driving with remnants or detectable levels of drugs in their system and the collisions themselves. Again, if this was going to make any significant difference we would see it in the road toll, and there’s nothing.
Let’s consider who’s actually making money out of this law. Firstly, the police service is getting a great wack of road safety funding to do these tests. Then there’s the two biggest donors to political parties in New South Wales: alcohol companies and pharmaceutical companies.
They’re making money out of this law because people are changing their habits. They’re having a whisky before they go to bed instead of cannabis, taking pharmaceutical medications to deal with chronic pain and sleeplessness instead of cannabis. There is money being made out of this current regime, and that’s simply not good public policy.
There will be a massive 200,000 roadside drug tests this year in NSW. Why are we spending road safety dollars on something that doesn’t increase road safety? Why are we spending money on something that has no use? The only explanation I can come up with is that it’s not about road safety at all. It’s actually about prohibition. It’s about the fear of ‘getting high’.
So what needs to change? I believe the most important single change – and in fact, I have been criticized for saying this is not going far enough – is that those who have a prescription for cannabis should have a defence to a charge of driving with a detectable level of cannabis in their system.
An adult who is undergoing chemotherapy, who’s using cannabis as a prescription from their doctor, should have a defence to this charge of: “I’ve got a prescription and I wasn’t under the influence.” I know that that’s a very small, incremental change and people would like to see far more radical changes. But it’s undeniably a change that could be accepted.
Ultimately, these laws should be completely abolished. There is simply no justice in these laws and the way they’re applied, particularly for those who are using cannabis medicinally. They’re a waste of money, they’re a waste of police time, and they aren’t achieving any of their aims. It’s high time we got rid of them.