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Criminal Law Blog NSW

Mobile Drug Testing campaigns are aimed at detecting the use o illegal drugs

Courts are finding drivers “not guilty” of drug driving when they reasonably believe drugs are no longer present in their system

Mobile Drug Testing campaigns are aimed at detecting the use of three illegal drugs:  cannabis (marijuana), Ecstasy, and methamphetamine (Ice). The law in NSW prohibits driving if any amount of those drugs can be detected in the driver’s blood.

The law is designed to relieve prosecutors of the burden of proving that a driver was “under the influence” of any of those drugs. That burden can be difficult to meet since scientists cannot say whether any particular level of those drugs in the blood will affect a person’s ability to drive safely.

The problem is that a driver might use the drug and then, days or even weeks later, test positive for the drug. That is most likely to happen in the case of cannabis. A heavy user of cannabis might still test positive for the drug weeks after marijuana smoke was last inhaled. Since metabolites of cannabis are stored in fat cells, they are often released into the body when a user begins to lose weight, resulting in positive blood tests for cannabis more than a month after the drug was last ingested.

Mistaken belief leads to acquittal

In January 2016, a Lismore magistrate found a man “not guilty” who had been charged with drug driving on the basis of a positive saliva test for cannabis. The man had been pulled over for random testing. He told the court he did not expect to have drugs in his system, and therefore thought it was safe to drive, since nine days had passed since he last smoked marijuana. The driver testified that he was relying on the advice of a police officer who told him to wait a week before driving after smoking marijuana.

The magistrate believed the man’s testimony. The magistrate sensibly ruled that the law is meant to apply to individuals who consumed drugs relatively recently before driving, so that drivers would not take to the road when their driving skill might be affected by drug use. The magistrate did not believe that the law is intended to prevent people from ever driving again after they use a drug. The driver’s reasonable but mistaken belief that he would not have drugs in his system operated as a defense to the charge.

Doubts about roadside testing

A similar decision in Queensland last year has cast doubt on the effectiveness of roadside testing. More and more drivers across Australia are finding it wise to hire a lawyer and to fight drug driving charges so that they do not needlessly lose their licenses.

Prosecutors can still base drug driving charges on any drug that impairs the ability to drive when they have evidence of actual impairment. Those charges are sensible because they protect society from dangerous drivers.

Prosecuting drivers who are not impaired, simply because they used a drug many days earlier that no longer affects the ability to drive, is a waste of resources and a potential source of harm to drivers who have not placed society at risk. Those drivers now have the opportunity to hire a lawyer in order to fight an unfair charge.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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