Questions and answers on law to combat drug impaired driving
Last updated on
8/05/2013 2:04 p.m.
This page contains questions and answers on legislation to combat drug impaired driving.
For information on the drug research on Land Transport Act blood specimens follow this link.
The Land Transport Act 1998 gives Police powers to deal with the problem of people driving under the influence of drugs.
The drug driving provisions of the Land Transport Act 1998 came into force on 1 November 2009 (through the Land Transport Amendment Act 2009).
The Amendment Act also reformed the law regulating the registration and licensing of motor vehicles. These changes came into force on 1 May 2011. Information on these changes is available on the NZ Transport Agency website. Information is also available on the Ministry website about ongoing access to the Motor Vehicle Register.
What is the Land Transport Act offence for drug impaired drivers?
It is an offence to drive while impaired and with evidence in the bloodstream of a qualifying drug. The presence of a qualifying drug alone is not sufficient for an offence; there must first be impairment as demonstrated by unsatisfactory performance of the compulsory impairment test.
This law complements drivers' duty to be mentally and physically fit when they drive a motor vehicle on public roads - this includes not being impaired by alcohol or drugs.
There is also an offence of driving or attempting to drive while under the influence of drink or drugs to the extent of being incapable of proper control of a motor vehicle. Police have the option of charging the person with this offence, if there is sufficient supporting evidence.
What substances are looked for in the blood test?
Police can test for the presence of qualifying drugs if a driver fails a compulsory impairment test.
Qualifying drugs include controlled drugs that are set out in the following specified schedules in the Misuse of Drugs Act 1975:
Schedule 1, Schedule 2, and Parts 1, 4, and 7 of Schedule 3 of the Misuse of Drugs Act 1975.
Parliament agreed that the law should also cover the family of drugs known as benzodiazepines (anti-anxiety, tranquilliser medication). These comprise the following drugs:
Also included are —
(i) any controlled drug analogue (within the meaning of controlled drug analogue in section 2(1) of the Misuse of Drugs Act 1975); and
(ii) any prescription medicine; but excluded is any substance, preparation, mixture, or article if it is excluded by regulations made under the Land Transport Act.
A full list of prescription medicines that are included can be found in the Medicines Regulations 1984.
In analysing the results of the blood test, Police target the substances which pose the highest risk for road users and which are the most likely to be used by New Zealand drivers. Drugs targeted are likely to include opiates, amphetamines, cannabis, sedatives, antidepressants and methadone. The list will be reviewed from time to time in the light of research, and changes in New Zealanders’ drug taking habits.
It is important to note that the law provides a defence for a person who can prove that they were using the qualifying drug in accordance with a current prescription and instructions from the manufacturer, the doctor who prescribed it or the pharmacist who dispensed it.
How is this enforced?
Where a Police officer has “good cause to suspect” that a driver has consumed a drug or drugs, the officer may require the driver to take a compulsory impairment test.
Grounds for having good cause to suspect include erratic driving or, if the driver has been stopped for another reason, appearing to be under the influence of drugs. An example of the latter is the person stopped at an alcohol checkpoint who is behaving in an intoxicated manner but passes a breath alcohol test.
If the driver does not satisfactorily complete the compulsory impairment test, the Police officer may forbid the driver to drive, and require the driver to provide a blood sample.
Forbidding the person to drive deals with the immediate road safety risk represented by the impaired driver. Drivers who give an unsatisfactory performance on the impairment test can be forbidden to drive for 12 hours (the period of prohibition applied to a driver who is over the legal adult breath alcohol limit) but this may vary depending on the discretion on the Police officer.
The procedure for taking a blood sample is the same as for drink drivers who opt for a blood test. When the blood test results are known, Police make a decision whether or not to charge the driver.
What is the compulsory impairment test?
The compulsory test includes:
- an eye assessment – pupil size, reaction to light, lack of convergence, nystagmus (ie abnormal eye movement - irregular eye movement can be a marker for drug impairment)
- a walk and turn assessment
- a one leg stand assessment.
It is based on a test used in the UK and adapted for the New Zealand Police by experts from Swinburne University of Technology, Melbourne. Details of the test are published in the New Zealand Government Gazette.
Why are prescription medicines included in the offence?
The law treats controlled drugs and prescription medicines even handedly because both can impair a person’s ability to drive safely. This law is concerned with road safety risk, not with the use of drugs per se.
The law provides a defence for a person who can prove that they were using the qualifying drug in accordance with a current prescription and instructions from the manufacturer, the doctor who prescribed it or the pharmacist who dispensed it.
Does this law oblige doctors and pharmacists to warn their patients?
The law does not impose any additional obligations on doctors or pharmacists. Naturally, doctors and pharmacists will continue to provide advice to their patients on the possible side effects of drugs or prescription medicines (including any potential adverse impacts on driving) in accordance with accepted standards of clinical practice.
What happens if the driver is injured?
If the driver is injured or incapacitated to the extent that he or she cannot undertake the compulsory impairment test, he or she cannot be required to undertake it. Under the Land Transport Act 1998, Police can require a person in hospital or a doctor’s surgery as a result of being injured in a motor vehicle accident to provide a blood sample for the purpose of testing whether Class A controlled drugs are present.
This is consistent with the law for drink driving where Police may require a person in hospital or a doctor’s surgery as a result of being injured in a motor vehicle accident to provide a blood sample to determine whether or not the person is over the blood alcohol limit.
What is the penalty for drug impaired driving?
The penalties for drug impaired driving are aligned with the penalties for drink driving offences. The table below gives examples of the penalties.
|Nature of Offence
|Drug Impaired - First or second offence
- Up to 3 months in prison or a fine of up to $4,500; and
- disqualified from holding or obtaining a driver licence for at least 6 months.
|Drug Impaired - Third or subsequent offence
- Up to 2 years in prison or a fine of up to $6,000; and
- disqualified from holding or obtaining a driver licence for more than 1 year.
|Causing injury or death
|Drug impaired driving causing injury
- Up to 5 years in prison or a fine of up to $20,000; and
- disqualified from holding or obtaining a driver licence for 1 year or more.
|Drug impaired driving causing death
- Up to 10 years in prison or a fine of up to $20,000; and
- disqualified from holding or obtaining a driver licence for 1 year or more.
In situations where impairment cannot be proved, but there is evidence of drugs in the bloodstream other penalties can apply.
Why doesn’t the law state a maximum legal level of drug such as exists for alcohol?
It is not necessary to specify a maximum legal driving limit for drugs: the driver will be shown to be impaired or not impaired by the outcome of the impairment test.
Setting a maximum legal limit for drivers using a controlled drug would be at odds with the Misuse of Drugs Act 1975 which states that the use of certain controlled drugs (eg cannabis and methamphetamine) is illegal at any level.
What is random roadside testing?
Under a random roadside drug testing regime, the police officer would be able to stop and drug test any driver who is driving a motor vehicle on a public road without first needing to form good cause to suspect that the driver had used a drug or drugs.
To operate a fair and efficient random roadside testing regime the police need a reliable and quick screening device that can detect the drugs that drivers are most likely to use. This is because the screening device is used to determine who to let go and who to detain for further testing for a prosecution.
Why aren't we doing saliva testing as in some Australian states?
The drugged driving provisions in the Land Transport Act 1998 are concerned with impairment and a saliva test cannot show impairment, only the presence of a drug. Also, the saliva test technology is not yet reliable enough for use in criminal prosecutions.
A government review of the current drug testing regime was announced by Associate Transport Minister Simon Bridges in May 2012. The review concluded that New Zealand will not at this stage be adopting a random roadside drug-testing regime used in Australia, as the devices used are not considered reliable or fast enough yet to be effective.
These saliva screening devices can only detect three drugs – cannabis, methamphetamine and Ecstasy. And for cannabis, the devices are unlikely to detect half of the users. Studies in Europe have also yet to find a reliable device for roadside screening.
The saliva screening test also takes at least five minutes and the Minister decided that, in terms of New Zealand’s Bill of Rights, it would be unreasonable to detain drivers for this length of time at the roadside for a random test, when they are not yet suspected of having committed an offence. In comparison, breath testing for alcohol takes only a few seconds.
One of the actions in Safer Journeys, the government's road safety strategy to 2020 is to conduct further research into the extent and scope of drug impaired driving in New Zealand to inform the development of future roadside enforcement approaches. When technology that does meet New Zealand's requirements is available we can consider its introduction.
Read a Cabinet paper reporting back on the review findings (PDF, 72kb).
Why doesn’t drink drive testing use an impairment test?
An impairment test was used for drink driving before the breathalyser was developed. A breathalyser test is as reliable as the impairment test and can be undertaken in a fraction of the time.
What were the outcomes of the government review of the current drug testing regime, announced in May 2012?
A two-year review was requested by the New Zealand Government when the new regime came into effect on 1 November 2009.
The regime is based on the principle that drug-driving should be treated as a road safety issue and that those convicted should be subject to the same range of penalties as drink-drivers. The testing process also needs to be fair and robust, and comply with the New Zealand Bill of Rights Act 1990.
The government decided that the current drug testing regime for drivers will not be changed, as there is good evidence that the current regime is working well.
Over 500 drivers have tested positive for at least one drug in the two years since the regime began. The overwhelming majority – 95 percent of those who were asked for a blood specimen – tested positive to drugs, indicating police are judging driver behaviour well and not over-referring drivers. As at 31 December 2011, 414 drivers had been charged.
The government’s decision included not to adopt a random roadside drug-testing regime. (See question and answer above for more details.)
Are there other tests available apart from saliva test?
There are three types of test that are commonly used for drug testing: blood, urine and saliva. Only saliva testing would be practical for a roadside screening test.
While there have been attempts to develop other types of screening devices (e.g., ones that monitor eye movements; and ones for skin sweat tests) these are still at a very experimental stage. Ministry officials do not know of any jurisdiction using them in real-world situations by police for roadside enforcement purposes.
How will agencies get a better understanding of the drug driving problem in New Zealand?
Getting a better understanding of drug driving is not an easy task. There are periodic surveys undertaken by government agencies, and some non-government organisations, asking people to self-report on drug taking and driving after having used drugs. Given the illicit nature of some drugs, many people will be reluctant to be honest about their drug use.
Government agencies are working to improve data on drug driving and will continue to undertake research on this subject.
Where can I find out about the recent drug driving campaign?
See NZ Transport Agency's web page: