Enhanced drug driver testing

Why do we need to do more drug driver testing?

Driving under the influence of drugs is an issue on our roads and it needs to be addressed. In 2018, 95 people were killed on the road when drivers crashed with drugs in their system. Surveys show that only 26 percent of people expect to get caught drug driving compared to 60 percent who expect to get caught drink driving. 

 

The current situation

What evidence is there that drugs negatively impact driving

International research shows that many illicit, recreational and prescription drugs slow reaction time, increase risk taking, and make people tired. Drugs are often used in combination with alcohol, which magnifies their impact.

Many prescription drugs come with the warning ‘do not drive or operate machinery if affected, may cause drowsiness’ and/or ‘restrict or avoid alcohol’. In New Zealand, 25 percent of all prescriptions issued are for medication that can impair driving.

 

Are New Zealanders using drugs and driving?

From January 2014 to May 2018, analysis by the Institute of Environmental Science and Research (ESR) of the blood samples of drivers who had been stopped by Police and determined to be impaired by drugs, showed that 59 percent used cannabis and 41 percent used methamphetamine. Of the drivers caught drink driving in New Zealand who submit a blood sample for laboratory analysis, over a quarter also test positive for recent cannabis use.

In 2018, 95 people were killed because drivers crashed on New Zealand roads with drugs in their system

 

Are drivers in New Zealand tested for drugs now?

Yes, drivers are given a behavioural test, which must be carried out by trained Police officers when the officer has established  ‘good cause to suspect’ a driver is under the influence of drugs. If a driver fails this test, the next step is a blood test.

The behavioural test is very effective for identifying drug drivers – around 90 percent of them result in drug driving criminal convictions – but it can take up to an hour and a half to complete, including completing an evidential blood test.  This, and the fact an officer must have ‘good cause to suspect’, means not enough tests are carried out to act as a sufficient deterrent of drug driving.

 

How many behavioural tests are carried out annually?

In 2017/18, 473 blood tests were undertaken following failed behavioural tests. While Police don’t record the total number of behavioural tests undertaken, it is likely the total number is in the hundreds, not the thousands. In comparison, around 1.75 million alcohol breath tests are carried out each year.

 

 What drugs are currently tested for?

A full drug analysis can detect 200 illegal and prescription drugs, including the most commonly used illegal drugs like cannabis, ecstasy, and methamphetamine. This analysis is undertaken from blood provided by drivers who have failed the initial behavioural test, drivers who are hospitalised following a crash and deceased drivers.

 

Oral fluid testing

Will this replace the current Compulsory Impairment Test?

The current Compulsory Impairment Test (CIT) will still be used by Police in appropriate situations, for example where drivers are impaired by drugs that cannot be tested for through the oral fluid testing process.

 

Why is oral fluid testing being introduced?

Oral fluid testing at the roadside will provide for highly visible, high-volume detection and enforcement of drug driving. The legislation will enable Police to test drivers for drugs anywhere, any time, as they can now for alcohol. Police will not need good cause to suspect a driver has consumed drugs before testing.

Many jurisdictions in Europe and the United States conduct oral fluid testing. It has been used in Australia for 15 years.

 

What drugs will be tested for by oral fluid testing?

Subject to the testing equipment used, the drugs or drug classes that are initially proposed for roadside oral fluid testing are THC (the psycho-active ingredient in cannabis), methamphetamine, benzodiazepines, MDMA (ecstasy), opiates (e.g. morphine) and cocaine.

These drugs have been selected based on a combination of their elevated crash risk and the prevalence of their use by drivers in New Zealand.

 

Why are prescription medications included?

Research shows that many prescribed medicines have the potential to impair driving. Many prescription drugs come with the warning ‘do not drive or operate machinery if affected, may cause drowsiness’ and/or ‘restrict or avoid alcohol’. In New Zealand, 25 percent of all prescriptions issued are for medication that can impair driving.

ESR’s analysis of the blood samples of drivers killed in crashes between January 2014 and May 2018 found that 15 percent of the drivers had used medicinal drugs such as benzodiazepines.

There will be a medical defence for drivers who take medicines in accordance with a prescription or the instructions on over the counter medicine. The government will work with health practitioners to ensure patients are appropriately warned if they should not be driving on the prescription they are taking.

 

How will the oral fluid testing process work?

Police will be able to stop and test drivers for the presence of drugs and impairing medication anywhere any time, just as they can for alcohol. This is likely to be through high visibility checkpoints and/or through mobile vehicle stops.

Drivers who pass an initial oral fluid test will generally be free to go. Drivers who fail the first test will be given a second test to confirm the presence of drugs. Two consecutive failed tests showing the presence of drugs will lead to an infringement offence.

Drivers will have the option to elect to take an evidential blood test, as they can after alcohol testing.

 

How long will the oral fluid test take?

Technology is constantly improving but based on the technology currently available, an initial drug screening test could take two to five minutes.

 

How will oral fluid be collected?

This depends on the device used. Screening devices currently available can collect oral fluid from swiping the device across the tongue.

 

What about the drugs oral fluid devices cannot detect?

Police officers will continue to be able to conduct the current compulsory impairment test (CIT). A failed CIT leads to the collection of a blood sample which can be analysed for more than 200 drugs, including a number of synthetic drugs.

 

Will Police be able to test me twice, using the oral fluid and CIT processes? 

Police officers will not be able switch to the oral fluid testing process after they have commenced the CIT process. Drivers who have been subjected to the stringent CIT process, and determined not to be impaired, will not be further detained for oral fluid testing. However, Police will retain the discretion to use the CIT process for drivers who are impaired by drugs that the oral fluid testing device cannot detect.

 

How reliable are oral fluid tests?

They are increasingly accurate. Recent studies have shown very high results for accuracy in correctly detecting the presence of some drugs (around 95 percent). In Australia, accuracy has been reported as high as 99 percent. Requiring two positive (failed) oral fluid tests before an offence is established reduces the probability of two false-positive results.

 

How sensitive to drugs are the oral fluid testing devices?

Oral fluid testing devices are manufactured with ‘cut-off’ thresholds for the detection of drugs. The purpose of the thresholds is to reduce the risk of ‘false-positive’ results by ensuring there is a sufficient amount of a drug present in oral fluid to accurately determine a result. The thresholds also avoid the risk of penalising drivers who have accidental or passive exposure to drugs, low residual levels of a drug that are unlikely to impair driving in their blood due to previous but not recent use, or have consumed doses of prescription or over the counter medicines that are unlikely to impair driving.

 

Will the tests detect drugs such as cannabis consumed days earlier?

THC (the psycho-active ingredient in cannabis) can remain in bodily fluid for several days but for less time in oral fluid than blood or urine. The ‘cut-off’ detection thresholds in the oral fluid testing devices that Police are likely to use will generally detect THC 4-6 hours after use, by a recreational user.

 

Will there be a limit for the presence of drugs, like there is with alcohol?

The blood samples of drivers who fail a compulsory impairment test or elect to take an evidential blood test will be assessed against a legal limit. Drivers with drugs in their blood at or above an amount equivalent to the criminal drink driving limit (80mg of alcohol to 100ml of blood) will commit a criminal offence. Below the limit, drivers will be liable for an infringement offence.

Low-level ‘tolerance thresholds’ will be applied by ESR to avoid penalising drivers who have accidental or passive exposure to drugs, low residual levels of a drug that are unlikely to impair driving in their blood due to previous but not recent use, or have  consumed doses of some prescription or over the counter medicines that are unlikely to impair driving.  

 

How will the drug limits be established?

An independent panel of medical and science professionals will be established for a set term to provide initial advice to Government about the limits to be specified for drugs, the low-level tolerance thresholds to be applied to the detection of drugs by ESR, and the cut-off thresholds to be included in oral fluid testing devices.

 

Will Police be able to search the car of a driver who tests positive for drugs?

A positive (failed) oral fluid test for illicit drugs would not be sufficient to warrant a search of a vehicle for the purposes of establishing other drug-related offences.

 

What are the penalties for drug driving?

The proposed penalty for failing two oral fluid tests is an infringement penalty aligned with the drink driving infringement penalty, currently a $200 fee, 50 demerits, a 12-hour suspension from driving but no criminal record. This approach is intended to deter drug driving, without imposing criminal penalties on drivers whose level of impairment has not been assessed through the CIT process or by a blood test.

The proposed penalties for drivers who have blood analysis which shows they have drugs in their system above or below the legal limit of 80mg of alcohol to 100ml of blood are:

  • an infringement offence for drug levels below the limit - a $200 infringement fee, 50 demerit points and a 12-hour suspension from driving
  • a criminal offence for drug levels at or above the limit - a prison term of up to three months or a fine of up to $4,500, and a mandatory disqualification from driving of six months or more.

 

What about people who drive after consuming combinations of alcohol and/or drugs

International research shows that driving after consuming combinations of drugs, or drugs and alcohol can increase crash risk by 20 times more. During the development of legislation the Government will consider creating higher penalties for drivers that test positive for a combination of impairing drugs and alcohol, or combinations of drugs.

 

Will there be disproportionate impacts for Māori from random drug testing and, if so, how will these be mitigated?

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.

The infringement offence scheme mitigates the risk of Māori men and women receiving criminal penalties for drug-impaired driving. Police are currently undertaking a programme of work to manage the potential for unconscious bias in police practices.

 

What about the Bill of Rights Act?

Oral fluid testing at the roadside will involve detaining drivers and taking samples of oral fluid, so there will be Bill of Rights Act implications, however, the rights and freedoms affirmed by the Bill of Rights Act can be subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The oral fluid testing process includes a number of mitigations that reduce the Bill of Rights impacts of random oral fluid testing. These include that the process has the procedural safeguard of two consecutive oral fluid tests, drivers have the option of electing to provide an evidential blood sample, there is a medical defence, and the scheme includes an infringement level sanction.

 

What is the Government doing to address drug dependency and abuse among drivers?

The Government has committed to treating drug use as a health issue and to not criminalise drug use (where appropriate). Infringement notices issued to drug drivers will provide information about drug-related health services. There will be compulsory referrals to drug education or rehabilitation programmes for second and subsequent criminal offences. 

 

How much does each test cost and how much will this scheme cost to administer? 

Tests currently cost around $25 to $40. Overall the cost of the scheme has been estimated to cost $3.4 million per year but will deliver benefits of $41.5 million per year. 

 

When will oral fluid testing commence?

Depending on the progress of legislation to implement the new scheme, the aim is that oral fluid testing will commence in 2021.