NSW Petition - Stop evidence-free roadside drug testing

[Loco]

Hey all,

 

Here's a petition started by NSW Greens MP David Shoebridge targeting the evidence-free roadside drug testing that is causing so much unnecessary grief. Also attached is a news article about roadside testing. Its estimated NSW police will conduct about 30,000 tests in 2016 and they’re looking to expand that to 100,000 over the next two years.

 

Petition - https://www.change.org/p/nsw-police-force-minister-for-police-stop-evidence-free-roadside-drug-testing

 

 

Loco

 

 

News

Worried about roadside drug testing? Here are your rights

By Katie Cunningham 20 January 2016

 

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This week, NSW Greens MP David Shoebridge started a petition calling on police to abandon their roadside drug testing program. While Shoebridge wants impaired drivers off the roads as much as anyone, he says that the technology police currently use is “inherently flawed”, regularly turning up false positives and stripping drivers who consumed drugs up to four days earlier of their license.

The current program isn’t about making the roads safer, Shoebridge says, it’s about waging an ideological war on recreational drug users. And with police in NSW aiming to triple the number of mobile drug tests they conduct by 2017, right now you’re more likely than ever to be pulled over and asked for a saliva sample. So what are your rights if you get booked for drug driving? What can you be expect to be charged with? And what needs to change about the way Australia conducts mobile drug tests?

To find out, we interviewed David Shoebridge and for the rundown on the current laws in NSW and VIC (there might be slight variations on the laws in other states). Here’s what you need to know.

How do roadside drug tests work?

If you are pulled over for a roadside drug test, police will first ask for your license and breath test you. You’ll then be asked to wipe a mobile drug testing stick on your tongue and wait a few minutes while the results appear. If your test is positive, you’ll be taken to a roadside testing van or police station for another saliva sample and banned from driving for 24 hours. Your saliva sample will be sent to a laboratory and if the positive result is confirmed, you’ll be charged with driving with the presence of an illegal drug.

So what’s wrong with them?

A lot. For starters, the tests don’t determine whether drivers are under the influence of drugs at the time they are actually driving, but rather that they have a trace amount of drugs in their system. That means that a joint you smoked days earlier could return a positive result, landing you with a conviction even when you weren’t impaired.

“They’re testing for the smallest detectable trace element of drugs in your system,” Shoebridge explains. “The police standard operating producers expressly say that they’re not testing for impairment, only for presence. The smallest detectable trace element of drugs means you fail.”

How many roadside drug tests do police do? And how many come back positive?

Police in NSW, which has one of the biggest mobile drug testing programs, will conduct about 30,000 tests in 2016 and they’re looking to expand that to 100,000 over the next two years.

Overall one in ten tests comes back positive, but some police operations can see as many as one in three drivers testing positive. That’s because despite the fact that tests are meant to be random, police target areas where they think there will be a greater likelihood of drivers with drugs in their system, Shoebridge says. Drivers coming in and out of festivals are routinely targeted, as are areas of the NSW North Coast where there is a stronger cannabis culture. Comparatively, only one in 100 alcohol breath tests returns a positive result.

It doesn’t help that the test often produces false positives, not only for drugs consumed days earlier, but also over-the-counter medicines like cold and flu tablets.

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What drugs do they test for?

Currently it’s just cannabis, amphetamines and MDMA. Drivers under the influence of heroin, cocaine or psychedelics are off the hook, as are prescription painkillers and benzodiazepines, “which are known to seriously impair drivers and cause fatalities”.

“Someone can be literally zonked to the eyeballs on painkillers and they’re not tested, just waved through. Meanwhile someone who smoked a joint four days before and has no impairment faces losing their license and receiving a $1000 fine. It’s an evidence free zone.”

How long after you take drugs is it legally safe to drive?

There’s no hard and fast answer – it depends on personal factors like how much you took and your metabolism.

Transport NSW say you can expect stimulants like speed and pills to be detectable for a day or two after they were consumed, but with the tests sometimes picking up cannabis consumed several days earlier, it’s smokers who really need to watch out.

“There are reports of someone having smoked a joint two, three or four days before being tested and still coming up positive and losing their license,” explains Shoebridge. “That’s the equivalent of losing your license for a beer that you drank the afternoon before.”

Can you test yourself at home?

You can order your own saliva testing kits to use at home, but Shoebridge says they’ll set you back as much as $100 a pop and are as unreliable as the police testing units. (You can Google around for some cheaper ones.)

What should you do if your test comes back positive?

You can request that your saliva sample is retested at a laboratory and, Shoebridge says, “there have been a number of incidences where the laboratory test has come back negative after the initial test has come back positive”. But there can be a six week delay between the false positive and the final laboratory test.

If the lab test comes back positive and you weren’t under the influence at time of driving, you’ll have to go to court and plead your case to the magistrate. “In most states and territories, the magistrate has the discretion to find the offence proven but to dismiss the charges and not convict you, if they believe there are compelling reasons not to.” That means issuing what’s called a Section 10 in NSW – if this happens, you won’t lose your license.

“They are testing only for the presence of drugs and nothing to do with impairment”

“But that depends upon the good nature of the magistrate, and there are some magistrates who will simply remove your license and fine you.”

“These tests are so common now that if  you go to the local court you’re likely to be on a list of 20 or 30 defendants who are facing the same charge. In some court lists on the NSW North Coast, for example, there can 100 matters in the same list and the magistrate is churning through them ten at a time. Because there’s no evidence about the extent of the impairment or the quantity of drugs in your system, the magistrates are just guessing when they’re imposing penalties.”

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What about if you’re convicted?

If it’s your first offence you’ll lose your license for six months and receive a fine of up to $1,100; subsequent convictions will leave you without a license for a year. You’ll also get a conviction for impaired driving, meaning you’ll now have a criminal record.

Can you refuse or delay a test?

No. Well, technically you can – but that’s unlawful and will cost you your license anyway. It’s also an offence to try and delay the test, so you’re better off submitting to police direction.

What needs to change about the way we conduct roadside drug tests?

The Greens want to see Australia implement a system like that operating in the UK now, where police test for the level of drugs that actually impair your driving, rather than the smallest detectable trace amount.

“The stupidity of [Australia’s system] is reasonably clear,” Shoebridge says. “They are testing only for the presence of drugs and nothing to do with impairment. And they’re testing only for a handful of illegal drugs, even though some of the drugs that are most commonly found in road accidents, such as prescription drugs, are excluded.

“[We want] evidence based laws that reflect reality and make our roads safer. No one wants to be sharing the road with someone who is impaired from drugs. That should be a pretty easy common goal for all politicians, but instead we have these anti-drug zealots who are using roadside drug tests to run their ideological war.”

 

[Sir PsychoHashy]

Thanks for posting Loco, this is one of my pet peeves and a regular rant instigator.  But as Shoebridge has more calmly and eloquently voiced my issues I shall abstain from my usual tanty

 

Probably a waste of time, but I've signed anyway

[lookinggoodguys]

Yes everyone needs to sign...complete bullshit and even Jan Copeland knows it with all her bullshit grant money and so called studies... ...It's just a way to get back at it's citizens...C*nts act by the Government..

Edited January 28, 2016 by lookinggoodguys

[Loco]

Thanks for posting Loco, this is one of my pet peeves and a regular rant instigator.  But as Shoebridge has more calmly and eloquently voiced my issues I shall abstain from my usual tanty

 

Probably a waste of time, but I've signed anyway

 

It's absolutely infuriating!    I'm all for road safety but the current system for testing is just another weapon being used against us in class warfare. Any action is better than none, this petition might not get it over the line but I believe we're slowly chipping away at the bs. There's an election coming up and the Greener the senate is the better, but that's just my personal opinion. Thanks for signing mate!

 

Yes everyone needs to sign...complete bullshit and even Jan Copeland knows it with all her bullshit grant money and so called studies... ...It's just a way to get back at it's citizens...C*nts act by the Government..

 

You're absolutely right mate, thanks for signing!

 

 

Loco

[Sir PsychoHashy]

Yeah, I wasn't aware they were targetting particular socio-economic areas for their "random" testing, I'm now wondering how my cynical nature didn't already lead me to that assumption.  The whole thing is politically based, and merely seeking statistics, which makes it all wrong but also means there's pretty much no chance of changing it.

 

I also vote Green these days, what other choice is there unless you lean heavily to the right now that the supposedly left leaning Labour party is more right wing than Malcolm Fraser's Liberal government was.  No other party seems to stand for anything other than economy before society, which roughly translates as "our rich mates and backers at the expense of you pleb voters".  Sorry, starting to rant again

[Loco]

I guess what gives me hope is that the whole world around us is changing... slowly, but changing nonetheless. If America with it's predatory capitalist ethos can achieve what they have so far, then there's no reason why we can't. If nothing else, hopefully the $$$ will encourage the government to catch up to the rest of the world.

 

You're too right about the current state of the so called left wing Labor party... biggest f*#@ing joke, weak Liberal wanna be sell outs.

 

 

Loco

[lookinggoodguys]

Yeah, I wasn't aware they were targetting particular socio-economic areas for their "random" testing, I'm now wondering how my cynical nature didn't already lead me to that assumption.  The whole thing is politically based, and merely seeking statistics, which makes it all wrong but also means there's pretty much no chance of changing it.

 

I also vote Green these days, what other choice is there unless you lean heavily to the right now that the supposedly left leaning Labour party is more right wing than Malcolm Fraser's Liberal government was.  No other party seems to stand for anything other than economy before society, which roughly translates as "our rich mates and backers at the expense of you pleb voters".  Sorry, starting to rant again

Yes they target Logan area, Caboolture, Ipswich area in QLD Known area due to their mapping database and socio econimic area.  Every raid bust caution goes into the database and historically tracked. All policing is database driven which follows trends, stats and movement of criminal activity. They target the known hotspots based on this information. All policing is tracked in real time.

Edited January 30, 2016 by lookinggoodguys

[lookinggoodguys]

Australia's drug driving laws are grossly unfair : http://www.msn.com/en-au/news/australia/comment-australias-drug-driving-laws-are-grossly-unfair/ar-BBoQlOa?ocid=spartandhp

 

Every Australian jurisdiction has, over the past decade, passed laws that make it an offence to have any trace of an illicit drug in your blood when you are driving. It does not matter that your driving is exemplary or that the trace of drugs in your blood is from a couple of puffs of a cannabis joint a few days earlier.

In most states and territories the court will have no choice but to disqualify or cancel a first time offender's drivers licence for a period of between a minimum of three months and maximum of six to nine months.

Drug driving laws are grossly unfair. They are not based on data or scientific knowledge.

These laws are under pressure in the United States with the advent of medical cannabis and an acknowledgement by one superior court last month that it is patently unjust to penalise a person who does not threaten other road users in any way.

The inherent unfairness of drug driving laws can be illustrated by comparing them to drink driving laws.

The link between alcohol and road deaths and injuries is well known, as Assistant Professor Andrea Roth wrote about in the California Law Review last year.

In the article, Assistant Professor Roth described the work by epidemiologists - who in the 1940s, 1950s and early 1960, along with law enforcement researchers and medical scientists undertook exhaustive studies and tests - to prove a link between the level of alcohol in a person's blood and how it impairs their capacity to drive a motor vehicle safely.

We base our drink driving laws on this demonstrably correct data and accordingly allow for some alcohol in the bloodstream for full drivers licence holders, so long as it is below a blood alcohol content of 0.05 per cent.

But not so with other drugs such as cannabis. Here we take the prohibitionist stance and apply it to driving without bothering to undertake the rigorous analysis that accompanied and underpinned drink driving law development.

This is admitted by researchers in the field. Roth cites a 2007 paper published in Addiction by Franjo Grotenhermen and colleagues who observed:

"A zero tolerance approach to drugs while driving "avoid

the need for a reliable science-based correlation between drug concentration and level of impairment".

As Professor Roth observes, it is a case of legislators being lazy and simply saying "a prohibitionist stance would have to do."

Dr Alex Wodak, now Chair of the Australian Drug Law Reform Foundation and formerly head of drug and alcohol services at St Vincent's Hospital in Sydney, notes that:

"One of the problems with 'zero tolerance' drug driving laws is that they punish some drivers who are not impaired as a way of deterring other drivers who might be impaired or might become impaired from driving. This is what we call 'vicarious punishment' and it offends basic notions of fairness."

Or, as Professor Roth puts it, "punishment without purpose is immoral."

In short, Australia's drug driving laws have no evidential basis but can have severe impacts on the rights of individuals and their families, given that the loss of a drivers licence can mean losing your job.

The US is now grappling with the consequences of the immorality and injustice of zero tolerance drug driving laws in the context of the legalisation of cannabis for both medical and recreational purposes.

You cannot allow people to use cannabis legitimately but then criminalise them if they drive.

Some states, such as Washington and Montana, have adopted limits for cannabis presence in the bloodstream analogous to 0.05 per cent laws.

But to quote Professor Roth again, even these more liberal laws are not legitimate because "there is no demonstrated linear or predictable relationship between THC blood limits and an increased crash risk."

The Arizona Supreme Court weighed into the issue last December in a landmark ruling when it identified the flaw in zero tolerance drug driving laws.

It noted that a driver cannot be considered to be " 'under the influence' based solely on concentrations of marijuana or its metabolites that are insufficient to cause impairment."

In other words, it is only legitimate as a matter of justice and sound public policy to prosecute individuals about whom it can be shown that the concentration of the drug in their blood steam meant that they presented a risk to other road users.

Australian courts are, literally on a daily basis, dealing with drug driving cases and criminalising individuals who represent no risk to other road users. This is making a mockery of the law as a tool for ensuring that risk in a community is managed reasonably.

Drug driving laws must be reformed and this can only be done by governments spending money on pursuing rigorous analysis of the impact of drugs on driving.

The only offence which ought to be on the statute books is one based, as is the case in respect of drink driving laws, where there is a strong research consensus on causation between the substance in a person's blood stream and impairment