Questions and answers on new law to combat drug impaired driving

The Land Transport Amendment Act 2009

The Land Transport Amendment Act 2009 gives Police greater powers to deal with the problem of people driving under the influence of drugs.

The drug driving provisions of the Land Transport Amendment Act 2009 came into force on 1 November 2009.

What is the new offence for drug impaired drivers?

The Land Transport Amendment Act 2009 creates a new offence of driving while impaired and with evidence in the bloodstream of a qualifying drug or driving while impaired and with evidence in the bloodstream of a prescription medicine. The presence of a qualifying drug alone is not sufficient for an offence; there must also first be impairment as demonstrated by unsatisfactory performance on the compulsory impairment test.

Isn’t drugged driving already against the law?

Yes, it is.  Drivers currently have a general 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 being incapable of proper control of a vehicle while under the influence of drink or drugs. However, this can be difficult to prosecute as the interpretation of “incapable" can vary. 

The existing “incapable” offence remains in place.  In cases where the impairment test cannot be used Police will have the option of charging the person under this offence, if there is sufficient supporting evidence.

How will it be 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 there is no evidence of drink driving.

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. It is likely that drivers who fail the impairment test would 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 will be published in the New Zealand Government Gazette.

What substances will be looked for in the blood test?

The test will 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 and prescription medicines that may impair driving (including 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. The new law allows blood samples that were taken as evidence for alcohol testing to be retained and reanalysed for road safety research relating to alcohol and drugs.

The controlled drugs that are included in the drug driving regime are set out in specified schedules in the Misuse of Drugs Act 1975.  Parliament has recently amended the Land Transport Amendment Act to include the family of drugs known as benzodiazepines (anti-anxiety, tranquilliser medication) in the list of drugs for which a driver can be tested for in the new drug impaired driving offence from 1 November 2009. A full list of prescription medicines that are included can be found in the Medicines Regulations.  However, as noted, the Police will determine a target list for testing.   

Why are prescription medicines included in the offence?

The new 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 new 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 the new law oblige doctors and pharmacists to warn their patients?

The new 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 he or she cannot be required to undertake the compulsory impairment test.  Under the Act, Police will be able to 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.  The principal Class A drug of concern is methamphetamine or 'P'. 

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 will be the penalty for drug impaired driving or driving with Class A drugs in the blood stream?

The penalties for drug impaired driving are aligned with the penalties for drink driving offences.  The table below gives examples of the penalties.

Why doesn’t the new 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 which states that the use of certain controlled drugs (eg cannabis and methamphetamine) is illegal at any level. 

Why aren't we doing saliva testing as in some Australian states?

The new law is 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.

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. 

When does the new law come into effect?

The new drug driving law came into effect on 1 November 2009.