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Dangerous path when police put war on drugs before road safety

23 May 2015 174 views One Comment

Our drink-driving laws have been successful because the focus is on road safety, not prohibition. That approach makes clear sense to everyone. But, above all, this game-changing legislation is grounded in rigorous science, ­including the epidemiology, pharmacology and physiology of ­alcohol.

Because they target road safety rather than prohibition, our drink-driving laws have fundamentally changed attitudes, too. These days it is utterly unacceptable to drive when intoxicated. Now mates, more often than ever, step in and take away a drunk’s car keys, as they should.

If only it were the same for the other intoxicating substances. We now have the technology to detect very low levels of other drugs in saliva obtained from drivers.

We also have information to help set limits based on levels of impairment and levels of certain drugs in blood that make driving unsafe. So why aren’t we following the same path that allowed us to rid the roads of drunk drivers?

The reason is plain. Drugs such as cannabis, amphetamines and ecstasy are illegal. We confound the police targeting road safety by asking them to wage the so-called “war on drugs.

Rather than concentrating on driving impairment, we ask them to detect any trace of an illicit drug and to go for a drugs conviction instead of a road safety conviction.

If we had done the same with alcohol — not even one sip before you lose your licence — the public would have dismissed drink-driving laws out of hand. This would have missed a thoroughly proven opportunity to significantly reduce the carnage on our roads.

Random breath testing pun­ishes people who are at high risk of harming themselves and others and does not punish the innocent. This is in stark contrast to drug-driving laws, which have been passed by all Australian states and territories. There are many other drugs with a far greater risk of causing a road crash than, say, cannabis.

Yet drivers are punished for having one or more of these targeted drugs present in detectable quantities in saliva, not for being impaired.

The rationale for drug-driving legislation is that drivers will be deterred from using these drugs and subsequently driving under the influence of them.

But a fundamental problem with drug-driving legislation is that innocent (by which I mean unimpaired) drivers are being punished in the hope that other drivers will change their behaviour in a socially desirable direction.

Punishing some people to change the potential behaviour of others is nothing less than vicarious punishment.

Indeed, ACT Human Rights Commissioner and Discrimination Helen Watchirs ­officially advised the ACT government not to proceed with this inequitable legislation and predicted it would be successfully challenged one day in the ACT Supreme Court under human rights legislation.

Drivers impaired by drugs certainly should be identified and punished, but only on the basis of sound science and respect for the rule of law.

All of this is highlighted by a judgment by David Heilpern, a magistrate from Lismore in northern NSW, about drug driving, published in October last year.

The defendant admitted he had been driving the vehicle and did not dispute that he had a detectable quantity of cannabis in his saliva. However, he argued that he was not guilty for the following reasons: he had two puffs of cannabis 12 to 14 hours before. He was in no way intoxicated or affected by cannabis at the time of his apprehension and he presented no danger to other road users.

The defendant also argued that the police were targeting people attending Mardi Grass rather than poor or dangerous driving.

He correctly claimed that he could have had two alcoholic drinks instead of cannabis and it would not have been illegal, and that he could have consumed methadone or other prescription drugs in detectable levels without committing an offence.

But as Heilpern pointed out, the offence was entirely made out because the defendant was driving the vehicle and there was a detectable level of cannabis in his blood.

It did not matter if he was under the influence, in the sense that his driving was affected by the traces of cannabis detected in his blood. The mere presence of those traces was sufficient for him to be found guilty.

Heilpern agreed that random drug testing of drivers was primarily an illegality issue, not one about road safety, and that police did not need to prove that the driving was adversely affected by the traces of cannabis detected.

There is no doubt cannabis can adversely affect driving ability at certain levels, especially when combined with alcohol.

Where this is alleged, a more serious charge of “driving under the influence may be laid. This is an entirely different charge than the defendant’s, and it carries greater penalties. The unfairness or otherwise of the legislation is irrelevant to the assessment of guilt. In contrast, the mere presence of prescription drugs is not treated the same way.

Heilpern concluded that the defendant’s offence was concerned primarily with drug prohibition and prosecuting drug users rather than being about road safety.

Thinking more widely about roadside drug testing, it seems crystal clear that characterising drug-driving legislation as primarily a road safety initiative is false. This is because its main focus appears to be on prosecuting drug users.

After considering Heilpern’s important judgment, it seems to me that drug-driving legislation in Australia should be thoroughly questioned. Indeed, I strongly recommend it be the subject of a parliamentary inquiry.

Ross Fitzgerald is emeritus professor of history and politics at Griffith University. His memoir, ‘My Name is Ross: An Alcoholic’s Journey’, is available as an e-book.

The Weekend Australian, May 23-24, 2015, p 24.

One Comment »

  • Alex Wodak said:

    Punish drug-impaired

    The principle that it is better for 10 guilty people to go free than one innocent person be punished is fundamental to our system. Yet drug-driving laws punish drivers for only having molecules of banned drugs in their saliva without requiring evidence of impairment (“Dangerous path when police put war on drugs before road safety”, online, 23/5) This is chemical McCarthyism.

    Impaired drivers should be punished. The laws for alcohol-impaired driving are fair and just, improve road safety and have the consent of the governed. We need laws that punish drug-impaired drivers, improves road safety, are based on science and are fair and just. It is time parliaments inquired into these laws.

    Alex Wodak, Australian Drug Law Reform Foundation, Darlinghurst, NSW

    The Australian, May 25, 2015, Letter to the Editor, p 13.

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