Research proves that many illicit and prescription drugs can impair driving, and that New Zealanders are using those drugs and driving. In 2019, 103 people were killed in crashes where a driver was found to have drugs other than alcohol in their system. This represented 30% of all road deaths. While drug-drivers already face serious criminal penalties if they are caught, the current law makes it hard for police to carry out more tests that could deter drug driving. That’s why the government has proposed legislation to introduce a compulsory random roadside drug-testing scheme in New Zealand. Under the new drug-driving regime, oralfluid tests will detect the most prevalent impairing, illicit and prescription drugs at the roadside. The proposed change allows police to test drivers for the presence of drugs anywhere, anytime, just as they can for alcohol.

What drugs can be tested for

The Land Transport (Drug Driving) Amendment Bill will introduce a new compulsory random roadside oral-fluid testing scheme under which a police officer can stop a driver of a motor vehicle and administer an oralfluid test without cause to suspect they have consumed drugs, consistent with the approach to drink-driving enforcement. Under the new law, officers will be able to saliva-test drivers for commonly used drugs such as cannabis, methamphetamine, cocaine, ecstasy, opiates and benzodiazepines.

There will be a medical defence for drivers who have consumed drugs with a prescription.

It is envisaged that low-level tolerance thresholds will be applied to the detection of drugs in blood to avoid penalising drivers who have accidental or passive exposure to drugs, low residual levels of a drug in their blood due to previous (but not recent) use and standard prescription doses of some medicines.

Compulsory impairment tests

It is hoped that the oral-fluid testing regime will complement the compulsory impairment test (CIT), which was introduced in 2009. A CIT is a behavioural test of impairment undertaken by a specially trained police officer, which cannot be required unless the officer has good cause to suspect the driver has consumed a drug or drugs. It comprises eye, walk and turn, and one-leg-stand assessment. A driver who fails to complete a CIT in a manner satisfactory to an enforcement officer is required to undertake an evidential blood test. Failing or refusing to undergo a CIT is an offence.

The new drug-driving regime will allow police officers to switch from the oral-fluid testing process to the CIT process if:

• a driver has passed the first oral-fluid test, but the police officer has good cause to suspect the driver has consumed drugs that the device may not be able to test for; or

• a driver has failed the first oral-fluid test and passed the second oral fluid test, but the officer has good cause to suspect a driver has consumed drugs.

Penalties

Graduated sanctions for drug-driving offences have been proposed, which are as follows:

• an infringement penalty for failing two oral-fluid tests (with an option to elect an evidential blood analysis following the failed tests);

• an infringement penalty for drug levels in the blood below an equivalent blood-alcohol concentration of 80mg of alcohol per 100ml of blood;

• criminal liability for drug levels in blood equal to or above an equivalent blood-alcohol concentration of 80mg of alcohol per 100ml of blood.

Other penalties include on-the-spot licence suspension and demerit points. Drivers would also face harsher criminal penalties where blood tests confirm impairing levels of drugs in their system or drugs combined with alcohol. There will be additional penalties for third and subsequent convictions for drug driving designed to target repeat offenders in the same way that the Land Transport Act 1998 imposes heavier penalties for repeated impaired driving offences.

It is likely that information about drug-related health services will be provided with infringement notices issued. For offending that proceeds to court, it is intended that recidivist drug drivers will receive compulsory health referrals at sentencing.

Please note that this article is not a substitute for legal advice, and if you have a particular matter that needs to be addressed, you should consult a lawyer. Danielle Beston is a barrister who specialises in transport law. Contact her on (09) 379 7658 or 021 326 642.