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Roadside Drug Testing - Impairment and Culpability

Marbury Chambers CLE - 2 June 2017

Robert Fröhlich

on 2 June 2017

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Transcript of Roadside Drug Testing - Impairment and Culpability

Roadside Drug Testing
Impairment & Culpability

Robert Fröhlich

Polysubstance use in injured drivers in British Columbia.
This Venn diagram shows the number and per cent of drivers testing positive for various combinations of substances.
The font size for each drug combination is proportional to its prevalence.
Estimated numbers of drivers over the study period. These numbers are estimated on the basis of a comprehensive chart review of all ED visits at participating sites. *Different sites participated in the study for different lengths of time. The total number of ED visits counts total visits for each site during the times that the site was enrolling patients.
**The proportion of drivers who had bloodwork obtained varied by study site from 6% to 58%.
***The most common reason for blood being unavailable was that the blood was discarded before research assistants could identify injured drivers and inform the lab. ED, emergency department.

Offences involving alcohol or other drugs are proscribed under the
Road Transport Act 2013 (
, Chapter 5 Safety and traffic management, Division 2:
- Presence of prescribed concentration of alcohol in person’s breath or blood;
- Presence of certain drugs (other than alcohol) in oral fluid, blood or urine;
- Use or attempted use of a vehicle under the influence of alcohol or any other drug; and
- Testing for alcohol and other drug use
(where Schedule 3 contains provisions relating to the procedures for, and the use of evidence
obtained from, testing for alcohol or other drug use by drivers and other road users.)

Defence of Honest and Reasonable Mistake
In NSW, drink-driving is an offence of strict liability.

Defences of honest and reasonable mistake are available, and sometimes successful:

DPP v Bone
[2005] NSWSC 1239, the accused was found not guilty of drink-driving charges after convincing a magistrate that his beer had been spiked with vodka without his knowledge. The DPP appealed but the magistrate was found to have been justified in his decision.

[2008] NSWDC 182, the District Court considered an accused's claim that he had inadvertently consumed a cough mixture containing alcohol, and that this combined with other alcohol had led to a reading in excess of the prescribed limit. The District Court applied the precedent in Bone, as well as a line of Tasmanian authority, and quashed the conviction.

OXYTOCIN - Catalyst, ABC-TV, Tuesday, 9 February 2016

Prof. Iain McGregor, Psychopharmacology Laboratory, University of Sydney

Defence for offence relating to presence of drugs in person’s blood or urine
There are prescribed defences:

Under s111(5) for the offence relating to presence of morphine in person’s blood or urine if it is present through being prescribed by a medical practitioner taken in accordance with a medical practitioner’s prescription; and

Under s112(6) for codeine-based medicinal drug purchased from a pharmacy that has been taken in accordance with the manufacturer’s instructions
(as codeine is also an opiate and is metabolised as morphine)
Temple Run
Andrea Roth,The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness, 103 Cal. L. Rev. 841 (2015).
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol103/iss4/2
Random Drug Testing uses tongue scrapers for initial indication of only cannabis, amphetamines or ecstasy.
It should be noted that there is no random drug testing for cocaine or morphine, nor any test for fatigue.
Excessive or Inappropriate
Illegal Alcohol
Restraint Non Useage
Illicit Drug Present
Until 2006, police had to rely on the appearance or behaviour of a person as evidence on which to base a charge of driving under the influence of a drug.

This was as such a de facto form of Sobriety Test.
2006 - Labour Government introduced the
Road Transport Legislation Amendment (Drug Testing) Bill

2nd Reading Speech - Minister for Roads, Eric Roozendaal:

The purpose of this bill is to provide New South Wales Police with new powers to detect drug drivers and create new drug driving offences. The bill introduces random roadside drug testing and provides for drug testing of any driver, rider or supervising licence holder involved in a fatal crash.

The bill amends the Road Transport (Safety and Traffic Management) Act 1999 and other legislation to ensure that motorists who take drugs and drive can be detected and penalised just as those who drink drive.

The incidence of drug driving in New South Wales is alarming. A study on drug driving commissioned by the Roads and Traffic Authority in 2003 found that 43 per cent of a sample of drug users in New South Wales admitted to driving while affected by drugs. Less than 3 in 10 of these drug users thought it was likely that police could detect them for drug driving.
A 1999 report showed that 24 percent of drivers killed in New South Wales in the years 1997 and 1998 were found to have drugs in their system.

Random roadside drug testing is a road safety initiative designed to keep drug drivers off our roads.

The driving skills of motorists with active drugs in their system are affected. Drugs affect a driver's judgment, concentration, and ability to react quickly and appropriately. Stimulants like speed and ecstasy can also lead to aggressive driving and cause motorists to take risks they wouldn't normally take.

Drug driving and its resulting trauma cause grief and distress for not only the victims themselves but also to their families and friends. People who have active drugs present in their system should not be driving on our roads.
The Government's rationale for the introduction of Roadside Drug Testing and Random Drug Testing was, and still is, based on evidence and statistics (as well as colourful graphics, charts, tables and maps), provided by studies of drivers with drugs in their system, and the trauma caused, similar to those that are still being prepared by the Transport for NSW Centre for Road Safety
(some of which contain incorrectly labelled charts)...
Over the six financial years 2010/11 to 2015/16 there were a total of 303 fatal crashes which involved at least one motor vehicle controller with an illicit drug present in their system.
These crashes resulted in 334 fatalities, representing at least 16 per cent of all fatalities.
There has been an increasing trend in fatal crashes (and fatalities) involving an illicit drug in recent years with 80 fatalities and at least 20 per cent of all fatalities in 2015/16.
Drug-driving is an offence of strict liability, not absolute liability
Full transcript