The government has enacted the Land Transport (Drug Driving) Amendment Act 2022, permitting compulsory random roadside drug testing in New Zealand.

Many drugs slow your reaction times or affect your judgement, making you less safe behind the wheel. In 2020, 94 people were killed on New Zealand roads where the driver was found to have drugs or a mix of alcohol and other drugs in their system. Sixty-eight further drivers died with alcohol alone in their system. While drug drivers already face serious criminal penalties if they are caught, the current law has made it difficult for police to carry out more tests that could deter drug driving.

What drugs can be tested for

Under the new drug-driving regime, oral-fluid tests will detect the most prevalent impairing illicit and prescription drugs at the roadside without the need for the police to have cause to suspect a driver has consumed drugs. The proposed change is just around the corner and will allow police to test drivers for the presence of drugs anywhere, anytime, just as they can for alcohol. Police officers will be able to saliva-test drivers for commonly used drugs such as THC – the psycho-active ingredient in cannabis – methamphetamine, cocaine, ecstasy, opiates and benzodiazepines.

Compulsory impairment tests

It is hoped that the oral-fluid testing regime will complement the compulsory impairment test (“CIT”) 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.

Offences and penalties

The act proposes to establish infringement and criminal offences. These penalties will apply depending on the testing process and the level of drugs found in a driver’s system. The oral-fluid testing regime will be an infringement offence regime only. An infringement combination offence and a criminal combination offence will 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 above the criminal limit drug concentration.

The proposed offences and penalties are as follows:

• $200 infringement fee, 50 demerit points and a 12-hour prohibition from driving for driving or attempting to drive with one qualifying drug in blood below the criminal limit and above the infringement tolerance threshold or when two consecutive oral-fluid tests confirm the presence of a drug;

• $400 infringement fee, 75 demerit points and a 12-hour prohibition from driving for driving or attempting to drive with more than one drug, or drug and alcohol, in blood below the criminal limit and above the infringement tolerance threshold or when two consecutive oral-fluid tests confirm the presence of more than one drug;

• a prison term of up to three months or a fine of up to $4500, and a mandatory disqualification from driving of six months or more for driving or attempting to drive with one qualifying drug in blood above the criminal limit;

• a prison term of up to six months or a fine not exceeding $4500, and a mandatory disqualification from driving of nine months or more for driving or attempting to drive with more than one drug, or drug and alcohol, in blood above the criminal limit

• a prison term of up to two years or a fine not exceeding $6000, and a mandatory disqualification from driving for one year or more for a third and subsequent convictions for drug driving;

• a prison term of up to three years or a fine not exceeding $10,000 and a mandatory disqualification from driving of one 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.

Defences

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. 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.