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Is it Right to Lose Your License Over a Joint You Smoked Days Ago?

Australian police test for drug traces that might be days old. They're not testing if the person is fit to drive.

A NSW roadside drug testing unit. Image via

Last weekend, Australian police in New South Wales (NSW) ran a roadside drug testing blitz in several regional areas around the state, which found one in five drivers testing positive. On Monday, the NSW government announced plans to triple the number of tests by 2017. The crackdown comes in response to one in ten drivers failing the roadside tests for drugs, ­compared to one in 300 for alcohol.

The reason this is concerning is that drug tests don't check for drug intoxication, but for certain chemicals in saliva. In the case of NSW this is marijuana, MDMA, and amphetamines. And we only know this because NSW Greens MP David Shoebridge used freedom of information laws to obtain NSW police documents.


Testing for minute traces of drugs is affecting people like Burri Jerome, who's an Indigenous artist from the Tweed Valley. The Dainghutti-Gnargu man has been taking hemp seed oil for three years since having a triple bypass operation. "I need to take the oil to give me an appetite, as well as settling the nausea I experience," he explained. Although the legally sold oil is made from hemp—and contains almost no THC—Jerome has failed roadside tests twice. "I mean, what amount are their machines detecting?" he asked.

This is also a question asked by Steve Bolt, a solicitor at Lismore law firm Bolt and Findlay. He's been watching hundreds failing tests in the NSW Northern Rivers region, which is having an adverse effect on the local court system. Of the dozens of cases he's dealt with, the usual situation put to the court was a person smoked cannabis hours or sometimes days before, and weren't intoxicated when tested. "The test is very sensitive," he explained.

After acquiring NSW police standard operating manuals, Shoebridge was prompted to ask what levels they were testing for. "They had no idea," he said. "They just sent it off and the lab was testing for the smallest possible trace elements."

Shoebridge cites the 2013 WOLFFE Report, which was commissioned by the UK Government to gauge the level of drugs necessary to impair driving. The report found that prescription painkillers and benzodiazepines, such as Valium, were actually some of the drugs that most heavily affect driving. "The police should be testing for impairment, regardless of whether it's a legal, illegal, or prescription drug," said Shoebridge. "If the drug impairs your driving, you shouldn't be on the road."


Roadside drug testing began in NSW in 2007. Andrew Kavasilas, secretary of the Australian HEMP Party, has been a vocal opponent all along . He points to the 2006 Rosita project report, which found none of the oral fluid testing devices studied were reliable enough to be recommended for roadside screening. They were, however, shown to have a deterrent effect in the state of Victoria, where they were introduced in 2004.

Kavasilas believes the production of hemp seed for consumption is still illegal in Australia because it "will interfere with the saliva testing." He also holds grave concerns for the legalization of medical marijuana for the same reason, stating that "as they're doing with hemp seed food, they will fight medicinal cannabis tooth and nails."

Visiting fellow at the Australian National University, David McDonald researches health and justice. He agrees that testing for minute traces of drugs is not just chasing the wrong issue but is potentially unlawful. "It's a significant breach of human rights to have a driver guilty of a driving offense—any detectable level of the drugs in the body—when there is no evidence of impairment," he says.

According to McDonald, roadside testing should measure the quantities of drugs in the body, like the successful Australian model for alcohol does. This technology is already being utilized in the UK. "If you exceed the cut-off then you're guilty," he explained. "The cut-offs are based on solid scientific research about what quantities of the drugs create an unacceptable risk of a crash."

Despite this, Bernard Carlon, acting executive director at the Centre for Road Safety, Transport for NSW, staunchly defends the practice of roadside drug testing. As he told VICE, in 2014, 16 percent of road fatalities involved a driver with an illegal drug in their system. And this is why the state government is increasing its roadside drug testing to 97,000 a year by 2017.

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