Roadside drug testing

Roadside drug testing is becoming more common in New South Wales - and, in my opinion, that's a good thing. We often hear about people being booked for having illicit substances in their system, and we see it on TV shows like "RBT" on the Nine Network.

However, just because someone is booked for illicit drugs in their system, doesn't necessarily mean they are "under the influence". It may simply mean they have used an illegal substance in the past day or so, as opposed to driving under the influence.

In a perfect world, there would be NO (illicit) drugs (at all), and people would have the common sense NOT to drive after drinking. But, as we see in the news every day, the world is far from perfect.

Anyway, Sydney traffic lawyer, Peter Proctor, explains drug driving in more detail, prompted by an article written by Barclay Crawford appearing in The Sunday Telegraph - 5 February, 2012. Please note that I have included this article merely to highlight the difference between "drug driving" and "driving under the influence". It's a distinction many people are not aware of.

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Peter writes:

I was reading an article on page 3 of The Sunday Telegraph today entitled "Drug Driving's on a High".

The article commences "Drivers high on illegal drugs are walking free..." etc. A bit further down (4th paragraph), the reporter states:

"But despite the law laying down tough penalties for those caught driving under the influence of drugs... one in four received no punishment whatsoever."

I think the reporter, Barclay Crawford, needs to brush up on his law.

For a start, "drug driving" is very different from "driving under the influence of drug(s)".

Drug driving, which is a more recent innovation (commenced 15/12/2006), allows Police to roadside test for minute quantities of drugs in a person's saliva. The test paddle, which detects cannabis, methyl-amphetamine (speed) or methylenedioxymethylamphetamine (ecstasy), must be calibrated to detect 150 ng/mL or greater of the drug in a person's saliva. This is a very small quantity. A nanogram is 10 to the power of minus 9 of a gram or 1 billionth of a gram. So to say that such drivers are "high" may not be correct.

The final analysing instrument has to be capable of detecting 25 ng/mL, so if the final analysis detects that a person has more than 25 billionths of a gram of Methyl-amphetamine, Cannabis or Ecstasy in his saliva, then he or she is prosecuted.

We are not talking here about a positive danger of such a driver on the road, as in the case of a person who is driving under the influence. It certainly has the potentiality of him/her being a danger, and hence the powers have been extended for this type of offence.

More information may be read in the Drug Driving and Prescribed Illicit Drug articles in the Proctor Law website.

Driving under the influence of a drug is a far more serious offence and carries gaol as a maximum penalty - on a par with mid range drink driving.

This article in the Proctor Law website deals with DUI offences.

Drug Driving is such a sensitive test that it can detect cannabis in a person's saliva, and yet he might not have imbibed such for one or more days prior to the test being undertaken. Amphetamines and other illicit substances have a half life such that they can remain in a person's system for quite a number of hours after use.

So it is not correct to assume that just because some of these persons obtain a S.10 dismissal, that the court is automatically going easy on driving under the influence of drugs.

Last year, I received favourable results for most of my clients, however, the person's record is a very significant factor. Also, the fact that this is a random stopping of people with no apparent aggravating circumstances - somewhat different from DUI - where the manner of driving is very significant and the degree to which a person is affected.

My concern is that this article by Barclay Crawford may create a wrong impression.

Traffic lawyers have a hard enough job getting reasonable results with magistrates these days, without it getting harder because of external pressures due to misinformation.

I'm not sure of the statistics, but I haven't regularly had one of these offenders for some time now, so it seems that it is not a very prevalent offence in any event, particularly when you look at the total of 474 offenders between 2007 - 2010 in the WHOLE State of NSW.

The final comment in the article quoting Wendy Machin, that the "community is being let down", further, in my view, helps to paint a false impression of the reality.

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Proctor & Associates Solicitors & Barristers

Peter Proctor
Level 3, 22 Hunter Street
Parramatta NSW 2150

Phone: 02 9687 3777
Facsimile: 02 9687 4403
Email: info@proctorlaw.com.au

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