ABC News - NSW cannabis user aquitted of drug-driving

[Loco]

Hey all,

This is awesome news!!!

 

The wheels are turning... the precedent has been set.

 

Yay for common sense!!!

 

 

Loco

 

 

 

 

Author: By the National Reporting Team's Lorna Knowles and Alison Branley

Date:02/02/2016

Source: http://www.abc.net.au/news/2016-02-02/man-caught-drug-driving-days-after-smoking-cannabis-acquitted/7133628

Copyright: Author or news provider?

 

 

Cannabis user who tested positive after nine days acquitted of drug-driving

 

New South Wales's roadside drug testing laws have been thrown into doubt after a magistrate acquitted a man who tested positive for cannabis he had smoked nine days before he was pulled over.

Key points:

• Man waited nine days after smoking cannabis before he got behind the wheel
• THC was detected in his saliva and he was charged
• He had earlier been told by police to wait at least a week before driving
• The Greens say the judgement leaves the drug testing laws in disarray

Lismore magistrate David Heilpern yesterday found Joseph Ross Carrall not guilty of driving with an illicit drug in his blood because he mistakenly believed that he would no longer test positive to the drug.

Mr Carrall was pulled over for random drug tests in May and June last year.

When he was tested in May, he said the police officer told him he should wait at least a week after smoking cannabis before driving.

Mr Carrall said he relied on this advice when, in June, he waited nine days after smoking cannabis before he got behind the wheel.

When he was pulled over again, traces of THC were detected in his saliva and he was arrested and charged.

The arresting police officer told the court that "a line had been drawn" and that now you could be "a smoker and not drive, or a driver and not smoke" and that that was the "effect of the new laws".

Driver made 'honest' mistake thinking he could drive

But Mr Heilpern said when drug testing legislation was introduced in 2006 it was clear that "ministers had in mind that it would be drugs that were active and affect the skills that were the mischief".

 

It's wrong, in my view, to be punishing people [by] taking their licences away when someone might have a had a smoke or two of cannabis a few days before driving a car.

Steve Bolt, lawyer

 

"Clearly, in 2006, the technology was not nearly as advanced as it is now," Mr Heilpern said.

"Certainly it was not the aim of the ministers that if you consume cannabis [at all] you cannot drive [ever]."

Mr Heilpern said no-one was seriously contending that Mr Carrall was still affected by the drug.

He found Mr Carrall not guilty on the grounds that he had made an "honest and reasonable mistake of fact".

Mr Carrall pleaded guilty to the same offence, which he committed in May, and will be sentenced on a date to be fixed.

Mr Carrall's lawyer, Steve Bolt, told the ABC that the law should be designed to improve roadside safety, not punish people for smoking cannabis.

"It's wrong, in my view, to be punishing people [by] taking their licences away when someone might have a had a smoke or two of cannabis a few days before driving a car," he said.

"It makes as much sense as taking someone's licence away for having a beer two or three days before driving a car.

"Unfortunately a lot of people would be at risk of falling foul of this legislation even though their experience of having used the drug would have had zero effect on their ability of driving a car safely."

Greens want drivers to be tested for impairment levels

NSW Greens MLC David Shoebridge said the judgement had thrown the Government's roadside drug testing campaign into disarray.

"This is significant because we've had case after case after coming before the courts, thousands of cases in NSW alone — where people have said 'I smoked a joint a day ago or a week ago and it couldn't have possibly impaired my driving and now you're going to take my licence away from me?'" Mr Shoebridge said.

"Up until now people have been thinking 48 hours or a week is safe to drive. They've been operating on that basis, thinking they are complying with the law but yet finding they can just randomly lose their licences at one of these roadside drug tests.

"This is giving ordinary people who are trying to comply with the law a chance to fight back and keep their licence."

Mr Shoebridge said legislation should be modelled on laws in the UK, where drivers are tested for their level of impairment.

He said he would be pushing for a parliamentary committee to examine the drug testing legislation.

The NSW Government said it had a zero-tolerance policy when it came to drug-driving.

A spokeswoman for NSW Roads Minister Duncan Gay said roadside tests were followed up with lab tests and 97 per cent of tests matched.

She said the research they had indicated drugs were only detected in a person's saliva for 12 hours after being ingested.

Topics: drug-offences, crime, law-crime-and-justice, courts-and-trials, nsw, australia

First posted

about 2 hours agoTue 2 Feb 2016, 2:23pm

Contact Lorna Knowles

More stories from New South Wales

 

 

[burner]

Agreed, secondary testing in the buses should consist of a packet of doritos, a pizza and a slurpee. Leave suspect alone for fifteen to twenty, upon return, slurpie partially gone, free to go, obviously nervousness resulting in dryness of the mouth, warranting the consumption of said slurpee. INNOCENT.....

Doritos packet open, partially consumed, free to go. Boredom at being alone, resulting in engaging in some sort of stimulating activity, noise from chip packet and subsequent crunching of corn chips breaking the silence, releiving said boredom. INNOCENT.....(may possibly involve partial consumption of slurpee.)......

Pizza partially consumed, free to go, obviously, suspect is hungry and if you don't get him out of there soon, you can kiss your dinner goodbye!!! INNOCENT, now get out of here!....

Which brings us to the last case scenario, the Warzone. Wall to wall with a flotsam and jetsam of Dorito crumbs and Pizza toppings, and a half drunk slurpee slowly running from the table top in a steady stream to the floor. (The result of headfreeze from said slurpee and subsequent evacuation from the hand as suspect scrambles to palm temples in a circular motion to relieve said headfreeze). Well, stoned or not, fucker ate your dinner and deserves to pay, GUILTY AS CHARGED...sentence, clean testing bus, your shout for pizza, catch a cab home and don't do it again. You're a stoner, your fucking harmless, there's worse criminals out there we should be focusing on, just use your head and don't put others at risk. Have a nice day.

That's what should happen, Imo.......

[Naycha]

Cheers for posting that Loco.

[Sir PsychoHashy]

Missus told me about this last night but I missed the story, so thanks heaps for posting Loco

 

This is great news for us in NSW, a precedent is a big deal with the law.  We'll still have a lot of magistrates with bee's in their bonnets over canna who will go out of their way to ignore it, and you'll probably still need a decent lawyer to argue the case, but at least it's out there now.

 

In theory this should mean that the pollies will need to amend the legislation, otherwise it's possible that every case that comes before the court could be quashed, unless the victim was stupid enough to admit to recent consumption.  The only sensible legislative change is to set a blood level for impairment, but going on the response from Gay they seem hell bent on maintaining the status quo, so it will probably take several more cases going this way to get them off their arses, and even then they'll probably be more likely to opt for reinforcing the legislation so that any trace is enough for a conviction, they just love their statistics too much.

 

This is my personal big legal worry as I never drive whilst affected, but know there's still a big chance of failing their retarded tests and losing my licence.  My futile plan has always been that if it happens I'll insist on a blood test so I can at least have a number to show in court in a vain attempt to demonstrate that I had not smoked for a while before driving.  I knew it would be a waste of time, but with this precedent it will at least have a chance of working now, and I would recommend all of us take that course of action if we ever get done.  I'm prepared (but not keen) to get busted and punished for growing, but not to lose my licence for driving whilst straight.

[Loco]

Naycha & Hashy - you're welcome!

 

Despite the ruling still being an awesome development, the below article states that "local court decisions have no precedent value". I agree with you Hashy as far as the current legislation needing to be amended. They may need to invest in research so the testing is in line with the alcohol reading method which I assume would also force them into researching intoxication levels and what may be deemed to be unacceptable/acceptable to drive.

 

Another thought I had was around requesting an on the spot sobriety test if you do test positive which should help with a not guilty plea, that's assuming you don't fail that too  

That's what I'll be doing if I'm ever in that situation although I haven't been able to find much information on sobriety testing... I might just give the local cop shop a call and ask.

 

What do you think about requesting sobriety testing?

 

Anyhoo ... below is that other article.

 

 

Loco

 

Author: Lisa Visentin
Date:02/02/2016
Source: http://www.smh.com.au/nsw/roadside-drug-driving-tests-mysterious-and-uncertain-magistrate-says-20160202-gmjus2.html
 

 

 

 

 

smh.com.au Roadside drug driving tests mysterious and uncertain, magistrate says

 

http://www.smh.com.au/content/dam/images/g/l/9/t/k/h/image.related.articleLeadwide.620x349.gmjus2.png/1454425551876.jpg

Congratulations.... you're pregnant!

The roadside drug testing regime used by NSW police to charge record numbers of motorists with drug- driving offences has been criticised by a NSW magistrate. Photo: Rohan Thomson

 

 

The roadside drug testing regime used by NSW police to charge record numbers of motorists with drug-driving offences has been criticised by a NSW magistrate for its opaqueness over how the tests operate.

In a decision handed down in Lismore Local Court on Monday, Magistrate David Heilpern​ said the lack of information around testing levels was part of the "mystery and uncertain-by-design of the current testing regime."

Magistrate Heilpern made the comments as he dismissed a drug-driving charge against Joseph Carrall, who tested positive for cannabis in June last year, nine days after smoking the drug.

The court heard Mr Carrall had relied on advice given to him by a police officer during another roadside drug test, one month earlier, where he also tested positive to cannabis. He has pleaded guilty to this charge.

Magistrate Heilpern found that on that occasion in May 2015, Mr Carrall was told by Senior Constable Chayne Foster he must wait one week after smoking the drug in order to be "fine to drive."

When he was arrested for a second time by Senior Constable Foster on June 23, 2015, after testing positive for cannabis during a another random roadside test in Lismore, he said "I thought I would be alright, it was over a week ago," the court heard.

While Magistrate Heilpern noted the law required only "the mere presence of a minute or residual presence of THC" for the offence to be proved, he found Mr Carrall not guilty of the June offence because, based on the officer's advice, he had "honestly believed that the cannabis was no longer present."

He found Mr Carrall was "telling the truth when he says that the last cannabis he smoked was at least nine days prior and he believed all the cannabis would have been gone from his system."

On those grounds, the defence of "reasonable and honest mistake of fact" should be applied, he said.

As part of his decision, Magistrate Heilpern said the lack of available information around the tests made it reasonable for Mr Carrall to have relied upon the officer's advice.

"After all, how else is a person to determine when they are right to drive?," he said.

The finding that Mr Carrall tested positive to cannabis nine days after smoking it is at odds with the official advice provided by the NSW Centre for Road Safety.

"Based on medical research and the manufacturers' specifications of the device we use for mobile drug testing, cannabis can be detected at the roadside in oral fluid for up to 12 hours after use, depending on the quantity and potency consumed," the centre's executive director Bernard Carlon said in a statement.

Whereas roadside breath testing for alcohol is based on concentration thresholds – under 0.05 is the legal limit for most drivers in NSW – drug-driving tests only screen for the presence of the cannabis, speed or ecstasy in any concentration

Mr Carlon said all positive roadside drug tests were subject to further laboratory testing before charges were laid.

"Around 97 per cent of samples collected from drivers who have tested positive to a roadside testing are confirmed positive in the laboratory."

Acting Assistant Commissioner Stuart Smith from the Traffic and Highway Patrol said the NSW police were "reviewing the court's decision."

While local court decisions have no precedent value, the case was significant in revealing the lack of clarity around how the tests work, Mr Carrall's lawyer Steve Bolt said. 

"The police will not release the calibration of their testing device. No one knows what police are testing for….the police themselves have no idea how it works.

"It's not a floodgates situation. It doesn't mean no one is ever going to be found guilty again...but I would think that other magistrates would be willing to adopt the same approach."

A finding of not guilty for drug-driving offences is a rare occurrence in NSW courts, with just four of the 3043 drug driving matters heard between January and September last year resulting in not guilty findings.  

The number of drug driving cases heard in NSW courts increased 109 per cent over the same period compared with 2014, according to data from the NSW Bureau of Crime Research.

The court's decision comes as the NSW police crack down on drug-driving, following the announcement by Deputy Premier Troy Grant in December that roadside drug testing would triple to 97,000 tests each year by 2017.

 

[Stiritup420]

Is it actually illegal to be stoned or having it in your system? If a motor vehicle is not involved can you be swabbed for any reason?

 

As far as I know, you cant.. So, if reading levels of thc were introduced would there be any fine or conviction introduced just for having used cannabis?

 

I cant see the cops wanting to forfeit much of the fines they are handing out now. they love the $$ and will find another way.. At least we could possibly keep or license

Edited February 3, 2016 by Stiritup420

[Loco]

So something else that I came across was re NT police drug testing that started a few days ago... 

 

Here's an excerpt from a ABC news story,

http://www.abc.net.au/news/2016-02-01/drug-driving-tests-begin-in-northern-territory/7130516

 

"Cannabis can be detected in someone's system long after it is used, but Superintendent Bob Rennie from NT Police said the new tests only detected recent drug use.

"I have seen a lot in social media saying 'if I had a joint four days ago, [or] two weeks ago, it is still going to show up?' Well, no it won't because of the restrictions put on the testing regime," Superintendent Rennie said.

He said the tests only picked up the presence of cannabis that had been smoked in the five hours prior to the test being taken.

"If you have had a joint within five hours of being pulled up you may be at risk," he said."

 

 

Loco

 

I wonder if all states use the same kits?

[Loco]

Is it actually illegal to be stoned or having it in your system? If a motor vehicle is not involved can you be swabbed for any reason?

 

As far as I know, you cant.. So, if reading levels of thc were introduced would there be any fine or conviction introduced just for having used cannabis?

 

I cant see the cops wanting to forfeit much of the fines they are handing out now. they love the $$ and will find another way.. At least we could possibly keep or license

 

According to http://www.druginfo.adf.org.au/topics/drug-law-in-australia

 

It states:

 

Drug offences

Drug laws in Australia distinguish between those who use drugs and those who supply or traffic drugs.

The Federal Customs Act covers the importing of drugs, and each state has its own laws governing the manufacture, possession, distribution and use of drugs, both legal and illegal. 

The Drugs, Poisons and Controlled Substances Act (DPCSA) includes these major drug offences:

 

Use

 

includes smoking, inhaling of fumes, or otherwise introducing a drug of dependence, into a person's body (including another person's body).

 

 

Loco

Edited February 3, 2016 by Loco

[grow for me]

In a decision handed down in Lismore Local Court on Monday, Magistrate David Heilpern​ said the lack of information around testing levels was part of the "mystery and uncertain-by-design of the current testing regime."

that right there is enough to get every weed smoker off if they get caught. once you say you didnt smoke that day they need to prove the tests are all above board which they obviously cant.

until they fix the testing that is

Edited February 3, 2016 by grow for me

[mogroith]

Adding to what grow for me said. If you go in the witness box and state under oath it was so many days before the test you smoked
the onus is on the prosecution to prove how many days you went without smoking, the law only says THC in the system not a level
so the level of THC in the secondary test cant be used, only if THC is present. Loophole use it.