Why Australia’s mobile drug testing regime is biased and unfair

Police in NSW and Victoria are planning to give random drug tests to over 300,000 drivers in the next year using a system that critics say is “inherently flawed”. Why? Because police are not charging people for driving under the influence of drugs, but because they have traces of drugs remaining in their system.

However, a NSW magistrate has ruled that the drug-driving laws were intended to stop people from driving while impaired by drugs, not because they had consumed an illicit substance at some time in the past. And while the police refuse to explain exactly how the tests work, the companies that manufacture the saliva-tests claim their machines are perfectly capable of detecting how impaired someone is.

The police don’t deny that the laws are being used to punish people purely for using drugs. The head of the NSW Random Drug Testing Unit told triple j, “If you’re partaking in drugs, which are illegal, do not drive a motor vehicle.” Another police officer, who arrested a man for drug-driving after he’d smoked weed nine days before, said that the laws meant “a line had been drawn” and now you can either be “a smoker and not drive, or a driver and not smoke”.

Now you can either be “a smoker and not drive, or a driver and not smoke”

But the judge in that case, Magistrate David Heilpern, acquitted the accused drug-driver and ruled that when the drug testing laws were written it was clear that the, “ministers had in mind that it would be drugs that were active and affect the skills that were the mischief… Certainly it was not the aim of the ministers that if you consume cannabis [at all] you cannot drive [ever].”


How long do you have to wait before driving?

Well, it depends on where you live. Up until the 1980s, drinking and then driving was a perfectly normal – and incredibly dangerous – thing for Australians to do. Now, after three decades of education campaigns and heavy policing, everyone knows and accepts that driving after more than the mandated amount of alcohol is an idiotic thing to do.

The authorities want to create the same stigma about driving under the influence of drugs, which is an honourable goal – but they’re missing one key element. Everyone knows how long you have to wait after a beer before you can drive – but no one knows how long you have to wait after taking drugs.

The advice offered by each state in Australia is different and vague, as the Huffington Post recently pointed out. NSW says that “even if you feel you are OK to drive” you might have cannabis traces in your system for 12 hours after smoking, while speed and pills can linger for up to two days. Victoria says that marijuana is detectable for up to 24 hours after you last smoked it, WA says just four hours, and Queensland refuses to give any advice at all.

But the media is awash with stories of drivers claiming to have lost their licences after testing positive for drug driving when they’d last taken drugs several days earlier – or not at all.

One driver told triple j’s Hack that he tested positive for marijuana when he hadn’t smoked in two years. Another man spent $5000 to successfully fight a charge of driving under the influence of speed – a drug he’d never taken. In that case, the test result was proven to be incorrect – but even if the test is correct, Australia’s zero-tolerance stance means that you’ll be busted for the smallest lingering trace. And according to the companies that make the saliva tests, it doesn’t have to be the way.


Police could easily be busting wasted drivers, not just drug users

The drug-tests used by Australian police can easily tell how long it’s been since someone used drugs, and whether they’re still affected. The company that makes the Draeger 5000 – the saliva-testing machine used by police in NSW, Queensland and South Australia – claims that the machine can, “pinpoint the time of drug consumption within a time window of up to eight hours”.

“This makes it very easy to determine whether a person has taken one or more drugs recently and is still influenced by them,” Draeger’s drug-testing expert claims on their website. In Victoria, they use the Securetec DrugWipe swab, which claims in its handbook that it can detect drugs like cannabis within a time window of around eight hours.

A 2013 British report on driving and drugs set out guidelines for what trace levels of drugs people can have in their system and be unaffected while driving – similar to the 0.5 level for alcohol in Australia. So if scientists have set unsafe limits for drugs and driving, and the tests are capable of judging whether drivers are over or under that limit, then why aren’t we using that system?

Waging an “ideological war” on drugs

Greens MP David Shoebridge says it’s an “ideological war” on a handful of illicit drugs – marijuana, speed and ecstasy – that’s clogging up courts with unnecessary cases. He claims it has nothing to do with road safety, especially since the saliva tests are capable of checking for prescription drugs like Valium, which is implicated in the largest number of crashes after alcohol, but police ignore those results.

“Someone can be literally zonked to the eyeballs on painkillers and they’re not tested, just waved through,” Shoebridge told inthemix. “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.”

Drugs and alcohol expert Alex Wodak agrees. “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,” Wodak said. “This is what we call ‘vicarious punishment’ and it offends basic notions of fairness.”

Why you should be concerned

With 300,000 drug-driving tests planned for just NSW and Victoria over the next year, and recent police statistics showing that one in six drivers returns a positive result for drugs, that’s a lot of Australians being arrested. And the consequences are dire. In NSW, a drug-driving conviction will land you with, at best, a criminal record, a six-month driving ban and a $1,100 fine. At worst, you could go to jail for nine months.

The Greens are pushing for a parliamentary inquiry into the drug-testing regime; they want a new system that tests a drivers’ impairment, like that used in the UK. If you agree, you can support the Greens’ petition over here. In the meantime, it looks like the casual weed smokers of Australia will have to take the bus.

Nick Jarvis is an editor at inthemix. He tweets (occasionally) at @nicknjarvis.