Why we need to change the drug driving regime
Currently, police officers can stop and test drivers randomly at the roadside for drink driving. The harm of drug driving justifies a similar approach — especially as evidence indicates that the existing regime is not as effective as it could be at reducing drug driving harm.
The existing regime is based on an impairment test following an officer establishing that they have ‘good cause to suspect’ a person has consumed drugs. Under the current approach impairment is assessed through a compulsory impairment test (CIT), which is a behavioural test, undertaken by a specially trained police officer. It comprises eye, walk and turn, and 1-leg-stand assessments. A driver who fails a CIT is required to undertake an evidential blood test.
The ‘good cause to suspect’ threshold and the behavioural test can take up to 1.5 hours. This limits the number of tests police can do to deter drug driving.
Research has shown that only 26% of drivers expect to be caught drug driving, compared to 60% who expect to get caught drink driving.
Which drugs the regime will test for
The oral fluid testing devices will test for the most prevalent drugs, or drug classes, in New Zealand. Initially, this is likely to include:
- THC — the psycho-active ingredient in cannabis
- methamphetamine
- benzodiazepines — sedatives
- MDMA — ecstasy
- Opiates, for example morphine,
- cocaine.
In some instances, a driver may elect or be required to undertake a blood test. The blood sample will then be tested for the presence of any qualifying drug.
‘Qualifying drugs’ are defined under the Land Transport Act 1998 as any substance, preparation, mixture, or article containing a controlled drug specified in Schedule 1 or 2, or any of Part 1, 4 or 7 of Schedule 3 of the Misuse of Drugs Act 1975. The Bill proposes for this definition to expand to include any drugs contained in Parts 2, 3, and 5 of Schedule 3 of the Misuse of Drugs Act 1975, given their impairing effects.
How the testing process will work
The exact testing process and time to do an oral fluid test will depend on what type of device is used.
The testing process for some devices involves several swipes of the tongue, which can be done in seconds with a small device.
Currently, some devices could return an initial result in two to five minutes. The time taken to return a result will depend on a range of factors including the type of device used, the threshold the device measures against, and the number of drugs the device tests for.
If a driver refuses an oral fluid test, they will be required to undertake an evidential blood test. It is an offence to refuse to undertake an evidential blood test when required.
Oral fluid test accuracy
The exact accuracy will depend on the type of device procured, but in general, the risk of false positives is quite small.
Some testing devices can be calibrated with higher detection thresholds, which can reduce the chance of false positives.
If a driver fails an initial oral fluid screening test they will be required to take a second oral fluid test. A driver will only be penalised if they fail 2 oral fluid tests. We estimate this will reduce the chance of a false positive to between 0.01 and 5.5 percent.
Police will also have robust training and procedures in place to mitigate any risk of inaccuracies caused by operator error.
If a driver fails 2 oral fluid tests they can also have a blood test to conclusively prove that they do not have drugs in their system.
It is highly unlikely for contamination to occur during the testing process.
This is because oral fluid tests are sealed prior to use, and, subject to the type of device procured, the collection pads will likely only come in contact with the driver’s tongue for 1–2 seconds, and are then sealed within the device.
The number of tests the police will conduct each year
The proposed oral fluid testing regime can deliver a large number of tests effectively. This will likely be phased in over a 3-year period, reaching 66,000 oral fluid tests per year. Police will be funded to deliver 33,000 oral fluid tests in the first year, increasing to 50,000 tests in the second year, and 66,000 tests in third and subsequent years.
Police will determine the most efficient and effective method of delivery for targeting drug driving risk.
If a driver has trace amounts of a drug in their system
Low-level tolerance thresholds would be applied if drugs are detected in a driver’s blood, and set in the oral fluid devices. These thresholds would avoid the risk of penalising drivers who have accidental or passive exposure to drugs, low residual levels of a drug, or consumed doses of some prescription or over the counter medicines that are unlikely to impair driving.
The Bill outlines that before the Minister of Police can approve an oral testing device, they must be satisfied the device will return a positive result only if the device detects a drug at a level that indicates recent use.
A medical defence will be available to drivers who have taken prescription drugs in accordance with their prescription, and have provided a blood sample through an evidential blood test.
Proposed penalties
The Bill proposes to establish infringement and criminal offences. These will apply depending on the testing process and the level of drugs found in a driver’s system.
An infringement combination offence and a criminal combination offence would also apply in different scenarios. This recognises the additional road safety risk of driving after consuming multiple drugs, or drugs and alcohol.
Serious criminal penalties result if a blood sample identifies the presence of any qualifying drug in the driver’s system.
The proposed offences and penalties are as follows:
- NZD$200 infringement fee, 50 demerit points and a 12-hour prohibition from driving for driving or attempting to drive with 1 qualifying drug in blood below the criminal limit or when 2 consecutive oral fluid tests confirm the presence of a drug
- NZD $400 infringement fee, 75 demerit points and a 12-hour prohibition from driving for driving or attempting to drive with more than 1 drug, or drug and alcohol, in blood below the criminal limit or when 2 consecutive oral fluid tests confirm the presence of more than 1 drug
- a prison term of up to 3 months or a fine of up to NZD $4,500, and a mandatory disqualification from driving of 6 months or more for driving or attempting to drive with 1 qualifying drug in blood at or above the criminal limit
- a prison term of up to 6 months or a fine not exceeding NZD $4,500, and a mandatory disqualification from driving of 9 months or more for driving or attempting to drive with more than 1 drug, or drug and alcohol, in blood at or above the criminal limit
- a prison term of up to 2 years or a fine not exceeding NZD $6,000, and a mandatory disqualification from driving for 1 year or more for a third and subsequent convictions for drug driving
- a prison term of up to 3 years or a fine not exceeding NZD $10,000 and a mandatory disqualification from driving of 1 year or more if a driver has caused the injury or death of a person and has a qualifying drug in blood below the criminal limit.
Criminal limits
The Government agreed that criminal limits would be specified in legislation following advice from an independent expert panel.
The panel will provide advice on setting criminal limits at drug concentrations in blood that align with drink driving measures of impairment, being a limit equivalent to a blood-alcohol limit of 80mg/100ml – the level of the current drink driving criminal penalty.
These limits haven’t been included in this Bill due to delays in establishing and therefore receiving advice from the panel. The intent is for criminal limits to be added by Supplementary Order Paper. To ensure transparency about the limits, the proposed limits will be available to the public during Select Committee consideration of the Bill.
Criminal levels will be established for the most prevalent drugs used by New Zealand drivers, subject to the available evidence and advice of the expert panel. This will include the drugs tested for through the oral fluid devices.
There are more than 100 other impairing drugs available in New Zealand. It is not possible to set criminal levels for all of these because there is insufficient evidence or research to establish the impairing effects of a drug, or because the drugs are new or quickly evolving, such as designer drugs.
As is currently the case, drivers would continue to receive a criminal offence following a failed compulsory impairment test where the driver’s blood sample shows the presence of any qualifying drug without criminal limits set.
An infringement penalty would apply for the presence of any qualifying drugs that do not have criminal limits, when impairment has not been established through a CIT.
NZ Bill of Rights Act 1990
We acknowledge that introducing a random oral fluid testing regime impacts on several rights affirmed and protected by the New Zealand Bill of Rights Act 1990.
Checks and balances have also been built into the regime to limit the impact on affirmed rights.
- The proposed oral fluid testing process includes the safeguard of 2 oral fluid tests, which establishes a reasonable basis for establishing liability at an infringement level and reduces the probability of false-positive test results.
- The process is less invasive and will take less time for most people than the current CIT process.
- A medical defence is available for drivers who have consumed drugs in accordance with a valid prescription and instructions from their health practitioner.
- The initial sanction for failing 2 oral fluid tests is an infringement offence, not a criminal sanction.
- Drivers can provide an evidential blood sample if they wish to use a medical defence or dispute the results of oral fluid tests.
- The proposal to issue an infringement offence following 2 failed oral fluid tests reduces reliance on the more invasive blood test.
How the proposal mitigates concerns that a drug testing regime will disproportionately affect Māori
New measures to address drug-impaired driving could have disproportionate impacts for Māori men and women, who are over-represented at all stages of the criminal justice system and receive a disproportionate number of drug convictions.
To mitigate the risk of Māori men and women receiving criminal penalties for drug-impaired driving, the police are currently undertaking a programme of work to manage the potential for unconscious bias in police practices.
The Cannabis Referendum will not affect the proposed Bill
The proposed drug driving regime is based on detecting and deterring the use of impairing substances in drivers, regardless of whether or not the substance that they have consumed is illegal.
If cannabis is legalised following the referendum, the proposed drug driving regime would continue to test for cannabis through oral fluid testing at the roadside, just as it would for other legal impairing substances.