Woman Avoids Drug Driving Charges by Claiming THC was From ‘Passive Smoking’

Last month, a woman in New South Wales avoided charges for allegedly driving under the influence of drugs. Nicole Spackman had tested positive for cannabis at a roadside drug test in northern NSW, but argued a “passive smoking” defence in an attempt to get out of the fine, the ABC reports. She hadn’t smoked weed in weeks, she insisted, but had been visiting her terminally ill neighbour who was smoking medicinal cannabis in her presence. The line worked, and the magistrate dismissed Nicole’s case in what has since been labelled a landmark court ruling.

It’s an incident that highlights the ambiguity and fallibility of roadside drug tests. While police who were pursuing charges against Nicole argued that it was impossible to test positive to tetrahydrocannabinol (THC) from passive smoking, Magistrate David Heilpern ruled that the prosecution did not provide enough evidence to prove her wrong—noting that "scientists do not know everything about THC and its rate and method of absorption." Nicole’s lawyer, Steve Bolt, described it as “the first case I'm aware of that passive smoking has been accepted as a defence.

"It's significant because it throws into doubt the fairness of the law,” Steve said, “that someone can inadvertently have drugs in their system for being a good Samaritan, spending time with a terminally ill friend, not be impaired, and still be charged and face losing their licence."

Nicole’s case may be unprecedented, but it also hints at a larger issue that will inevitably start rearing its head as medicinal cannabis becomes more readily available. Researchers at the University of Sydney’s Lambert Initiative for Cannabinoid Therapeutics recently conducted a study that sought to determine whether or not people who had been using medicinal cannabis were in fact safe to drive. A number of drivers with varying levels of THC and cannabidiol (CBD, a non-intoxicating cannabinoid used in many medicinal products) in their system were exposed to a series of tests to assess the effects it had on cognitive function and driving ability. While the specific findings of that study are yet released, it’s been noted that “on some measures, cannabis does not impair driving to the same extent as alcohol, and prescription drugs such as benzodiazepines and opioids.”

Data collected by the University has also revealed that roadside mobile saliva tests returned inaccurate results more than 20 percent of the time when testing for THC.

“This is a red hot issue for patients using medicinal cannabis many of whom are being told by their doctors not to drive under any circumstances,” said Professor Iain McGregor, the academic director at the Lambert Initiative for Cannabinoid Therapeutics. “While it is illegal in NSW to drive with any amount of THC in your system, other countries and jurisdictions have more refined laws that attempt to more clearly link driving prohibition to THC-induced impairment.

“More research is clearly needed to fully understand how different cannabis products affect driving.”

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