The medicinal cannabis industry will struggle to develop unless there is widespread reform to drug driving laws in Australia, a panel discussion has heard.

Former magistrate David Heilpern told a seminar that medicinal cannabis containing THC is simply not a viable option for the vast majority of people if it risks a driving ban and criminal record.

The danger is particularly acute for those living in rural and regional areas who rely on their own transport, he said.

Heilpern insisted the laws will deter people from taking cannabis and damage the growth of the industry.

The comments came during a panel discussion hosted by Health House which examined the contentious laws and the attitudes of police and politicians.

“I don’t believe you can have a successful medicinal cannabis industry or medicinal cannabis practice while you have the drug laws as they are,” he said. “What you are saying to every single person who is using anything other than CBD oil is ‘sorry, you can’t drive’.

“In rural and regional Australia that means no access to their jobs, no access to their doctors… it’s an impossibility for the vast majority of people to be without their licence… and I can’t see how the industry can succeed in the long term while these silly drug driving laws are in place.”

Heilpern dismissed as a “myth” claims that road safety is the motivator for the recent increase in drug drive testing, arguing there would have been a “massive reduction” in road accidents and deaths had that been the case.

The increase, and the hard line taken on THC, had nothing more than a “prohibition aim”, he said.

Heilpern’s remarks echo submissions to the Senate Inquiry earlier this year where the inequitable drug driving laws were cited as a major barrier to accessing medicinal cannabis.

An overhaul of the drug driving laws was one of the recommendations drawn up by the Community Affairs References Committee.

Medical cannabis to ‘undercut’ ethical justification for roadside testing

Developments in Victoria, where the state government created an ‘implementation group’ to explore the cannabis drug driving laws, have given fresh hope that reform may not be far away.

Such reform would formalise the already tacit acknowledgement at a political level that roadside testing does not demonstrate impairment, according to industry commentator and Cannabiz editor-at-large Rhys Cohen .

It would give ammunition for reform across Australia should the laws be changed by Victoria’s Labor Government, he said.

The increase in roadside testing is politically motivated, says David Heilpern

Cohen told the panel that roadside tests are recognised as “inaccurate, insensitive and can’t prove impairment”.

But he said ramping up testing and arresting more drivers is politically expedient as it reinforces the underlying message pedalled by authorities that people should not use drugs.  

“The reason why these testing programs have been expanded over the last few years… is that it’s relatively easy to say ‘well, okay, we know they are not accurate and they don’t test for impairment but people shouldn’t use drugs’.

“They say people shouldn’t be smoking pot, it’s illegal, and therefore the punishment is justified, even though that punishment is disproportionate.

“That is the ethical justification that props up this roadside testing regime.”

Generating statistics about testing is also good PR for the police and politicians in that they can sell the story to the public that efforts are being made to clamp down on law breakers, Cohen said.

Yet the continued prosecution of patients taking medicinal cannabis could be the “perfect tool to dismantle this strategy”, Cohen said.

“It totally undercuts the moral argument on which this program is based,” he said. “For the legally prescribed medical cannabis patient, they suffer from a medical condition, they are being treated by a doctor, have been prescribed a medicine, got it from a pharmacist and just like every other drug they are entitled to take it as their doctor recommends.

“The reason we have only recently seen a chink in the armour of the mobile testing is because the ethical argument that underpins it is being subverted. And that’s because of the legalisation of medicinal cannabis and the increasing numbers of people who are being prescribed medicinal cannabis.

“Police and Government don’t care that these tests don’t prove or demonstrate impairment. What will move the needle is when legally prescribed medicinal cannabis patients who are not impaired do test positive for THC and are dragged through the courts. That is the issue that is going to contribute to change.”

It is unclear how many medicinal cannabis patients have been prosecuted and banned from driving. But Heilpern suggested he saw “at least one a week” during his time as a magistrate.

As the number of people taking medicinal cannabis continues to increase, so the number of prosecutions is likely to rise

Nor did he witness many “18-year-old party animals” appearing in court on cannabis-related driving charges. Most were middle-aged, long-term cannabis users, he said.

Heilpern, who has formed lobby group The Cannabis Law Reform Alliance to campaign for change, said there should be no distinction between habitual, recreational or medical use.

“I don’t think that’s a useful conversation. We should be asking ‘what is the harm with these people driving with five or 10 nanograms of cannabis in their system?’ The answer is no harm.”

Quality of care

The strict laws were branded as an “impost” by Emyria Clinics medical director Dr Alistair Vickery, who described it as a “big issue for us”.

He called for the adoption of the Canadian approach where police conduct sobriety tests and set a lower limit of five nanograms per mil for the amount of permitted THC.

“This problem of prohibition for even small amounts is a major impost to good quality of care,” he said.

Prescribing CBD only – which would bypass the driving laws – would also fail to represent good practice given the therapeutic benefits of THC, Vickery added.  

Lambert Initiative researcher Thomas Arkell told the seminar that a study of healthy volunteers found a “moderate” level of THC impaired drivers up to four hours after vaping.

The level of impairment was found to be similar to the effects of alcohol at a blood alcohol level of 0.05%.

Additionally, the research found the presence of CBD did not negate the impairing effects of THC.   

Data shows that more than half a million roadside drug tests were carried out in 2019, of which one in 10 were positive.

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