New South Wales police have in recent years made increased use of roadside testing to detect people who drive after having consumed certain drugs.
At the moment, the tests aim to detect people who drive after using either cannabis or certain types of amphetamines.
Police have been operating under a law which makes it a criminal offence to drive with any amount of those drugs in a person’s bodily fluids.
Police usually detect this offence by testing a sample of saliva obtained when a driver is stopped for a roadside test.
This law has come under increasing criticism recently because not a lot of information is available regarding how sensitive the testing is. Unlike laws relating to driving with a prescribed concentration of alcohol in your system, there is no minimum level of drug that is considered safe.
Further, unlike under the offence of driving under the influence of a drug, the police do not have to prove that the drug detected in a person’s saliva was actually present to an extent that it would impact on their ability to drive safely.
Lawyers were increasingly hearing of cases where people were being charged, convicted and penalised under this law despite not driving for some considerable period of time after having used an illegal drug. A conviction for this offence results in an automatic disqualification of the person’s driver’s licence.
Recently a man charged with this offence on the north coast of New South Wales was found not guilty of the charge. The result of his case may create ongoing problems for the system of roadside drug driving testing that the police currently use.
In that case, the man gave evidence, which was accepted by the Magistrate, that he had not used cannabis for nine days before he was stopped by police and it was detected in his saliva. He also gave evidence that he had previously been tested by police and told by a police officer that he should not drive for a week after he had smoked cannabis.
On the basis of this advice from the police officer, he told the court that he had a belief that there would not be any cannabis in his system nine days after he had last smoked. The court accepted that he honestly held this belief and went on to find that it was reasonable for him to do so based on the advice he had received from the police officer.
The law provides that it is a defence to many charges if a person acts on an honest and reasonable belief in a state of affairs which, if correct, would have meant that they were not guilty. In this case, the Magistrate found the defendant not guilty because he accepted that the defendant had an honest and reasonable belief that there would not be any cannabis remaining in his system.
The implications of this decision are yet to be fully determined. The government has released information which they say suggests that cannabis can only be detected in saliva for up to 12 hours after it has been consumed. Obviously, this information is contrary to the Court’s finding in this case – that the defendant had not used cannabis for nine days before he was arrested.
In December last year, the government announced that the number of roadside drug tests conducted by police was going to be continually increased. They suggested that by the year 2017 police would be conducting approximately 97,000 roadside drug tests each year.
In those circumstances, one thing is clear. The number of people charged as a result of these tests will continue to grow. Given the mandatory penalties that apply for a conviction for this offence, anyone arrested after a roadside drug test should not hesitate to consult a lawyer for expert advice.