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A NSW Court Has Provided a New Defence for Drug Driving

Joseph Carrall was booked for driving nine days after he'd smoked a joint. A Lismore magistrate then found him not guilty, saying he'd made an "honest and reasonable mistake of fact."

A NSW Police random drug testing unit. Image via.

In June last year, Joseph Carrall was pulled over by the NSW police and saliva tested for drugs. The police detected marijuana in his system but Carrall claims he hadn't smoked weed in nine days. Allegedly he was also following the advice of a police officer, who'd told him a week would be sufficient.

The case ended up at the Magistrate's Court where earlier this month, Lismore magistrate David Heilpern found Carrall not guilty of drug driving. It was decided Carrall had made an " honest and reasonable mistake of fact."

For the state of NSW, which is taking a hard-line approach to roadside drug testing, this finding has set a very inconvenient precedent.

The campaign began in November last year. This was when the NSW Government announced it would triple the number of roadside drug tests by 2017. However, this intensification of testing had already begun months before in the north of the state, where Carrall is from.

The marketing for drug testing resembles that of breath testing for alcohol, but with a very significant difference. When monitoring drink driving, police are testing for driver impairment. Whereas drug driver tests—focused on cannabis, MDMA, and amphetamines—aim to detect tiny trace elements, instead of intoxication. So if a driver's ability to operate a vehicle is not being scrutinised, what's roadside drug testing all about?

"It's an ideological war against three illegal drugs," says NSW Greens MLC David Shoebridge, who believes the testing illogically targets marijuana users. If police were serious about public safety, he says, they'd also focus on cocaine, which significantly contributes to road trauma but currently isn't being tested for.

Cocaine use in Australia is currently at its highest level yet. The 2013 National Drug Strategy Household Survey outlines that while cocaine use has been on the rise since 2004, use of the three substances police are actually targeting has decreased. Authorities are not testing for prescription benzodiazepines and painkillers either, both of which are some of the drugs that most heavily impair driving.

Last week, Shoebridge paid a visit to the epicentre of the police roadside drug testing blitz: the Northern Rivers region of NSW. At Lismore court, he found 46 cases—or a third of all to be heard that day—were drug driving matters. "And not in a single one of those cases did police put forward a shred of evidence that any driver was impaired," Shoebridge recalled.

On the NSW north coast thousands of locals are losing their licences due to having substances in their systems that, like Carrall, many claim were consumed days before driving. Shoebridge subsequently believes there's a "desperate lack of information being given by the government." Locals want to know how long they should wait "between consuming cannabis and getting behind the wheel of a car," he explained. "Individual police are telling them it's seven days. And then we've got roads minister Duncan Gay making comments it's 12 hours."

VICE asked NSW police how long they recommend waiting to drive after taking these drugs. They directed us to a NSW Centre for Road Safety Facebook post and said they would "not be making any further comments."

The post explained that THC is "typically" detectable in saliva for up to 12 hours after consumption. But a chronic user could test positive for up to one to two days later. On the centre's website it outlines that stimulants, specifically speed, ice, and pills, can be "typically detected for one to two days."

According to Steve Bolt, Carrall's lawyer, the government's timeframes are a game changer for those on drug driving charges. In his view, if they're aware of the government's 12-hour rule, they'll "have a strong argument to put to the court that they had an honest and reasonable belief that they were not committing an offence."

The law states that to drive under the influence of drugs is illegal, regardless of the time limit. Before Joseph Carrall's case defendants would have to plead guilty and ask for leniency. But now, if people can prove they had a reasonable belief these substances would not show up in their system, there's a good case for acquittal.

Roadside drug testing was introduced in NSW in 2007. But it's not unique, Victoria was the first state to implement a similar program in 2004. And the rest of the country has followed suit, with the Northern Territory introducing the testing for all vehicles last month.

But Australia is a nation on the verge of embracing medical marijuana. Last week, the Federal Government introduced a bill, expected to pass this session, which will allow for legal cultivation and distribution. So questions are arising as to how a nationwide system of roadside drug testing, which specifically targets weed, and a regulated medicinal cannabis market can coexist.

Concerningly Shoebridge admits "there's been no suggestion from anybody in the NSW government that there will be any leniency on roadside drug tests for individuals who are on medicinal cannabis."

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