The Government initiated a discussion document on drugged driving. The deadline for submissions was Friday 28 June 2019. You can find the discussion document detail here.

The #makeitlegal submission is below:

REPRESENTATION TO THE MINISTRY OF TRANSPORT ON DRUGGED DRIVING

28 June 2019

 WHO ARE WE?

The Make It Legal Aotearoa New Zealand Trust is committed to supporting drug law reform research, campaigns and education for the benefit of individuals, whanau and communities. In particular we:

  • undertake and disseminate educational material and research on drug law reform policy and legislation and its impact on individuals, whanau and communities; and
  • support individuals, whanau, communities and organisations in activities that promote drug law reform, particularly the legalisaton of cannabis and
  • support just and rational drug laws that reduce harm and illicit activity; and maximises benefits to individuals, whanau and communities; and
  • provide other support and assistance consistent with our purpose.

The Make It Legal Aotearoa New Zealand Trust is currently campaigning under #makeitlegal, to raise support for cannabis law reform in the 2020 referendum on the legalisation of cannabis.

 OUR POSITION IN SUMMARY

We commend the Government on its enhanced commitment to road safety, including attempting to grapple with the difficult question of how to regulate drugged driving.

We urge the Government to consider this question within a broader context of driver impairment, regardless of the cause of that impairment.

We consider that impairment testing as it is currently practised is outdated, subjective and inadequate. We recommend that resources go into collaboration with other jurisdictions to develop simple device-based reaction testing as a low-cost screening device for impairment.

Following an impairment screening device, further testing (including substance testing where appropriate) and interventions can be conducted based on the nature and source of the impairment.

OUR CONTACT DETAILS

Sandra Murray

Secretary – Make It Legal Aotearoa New Zealand Trust

Email: sandra@makeitlegal.nz

Phone: 021 890 629

Webpage: www.makeitlegal.nz

 

ORAL SUBMISSION

We wish to make an oral submission on this matter if we can do so by phone or video conference.

 

OUR ANSWERS TO THE DISCUSSION DOCUMENT QUESTIONS

QUESTION 1: Do you think that roadside drug screening is a good option for deterring drug driving and detecting drug drivers? Are there other options not mentioned in this Discussion Document?

We agree that some kind of low cost and quick screening device for impairment is desirable, to act as a deterrent to impaired driving.

We do not support roadside drug screening. If the objective is to improve road safety, impairment needs to be the focus, regardless of the source of that impairment. The discussion document points out a number of substances that can cause impairment but which are unlikely to be tested for – synthetics, prescription drugs etc. There is also impairment that is not caused by a substance – lack of sleep, emotional stress etc.

We consider it entirely feasible to develop a simple app, loaded on a mobile device of some kind, that can test, for example, reaction time on a simple task. Failure to achieve a predetermined level can give rise to further testing to determine the cause of the impairment. This allows a quantifiable, objective test of impairment. It would mean a simple, low cost and rapid screening test that could be conducted in a similar way to roadside breath testing for alcohol.

Further interventions, following a failure on the initial screening test, could include:

  1. A more comprehensive (device-based) impairment test to determine the level of impairment. This could be linked to an individual’s base score over time, as the technology and levels of data capture improves.
  2. Blood testing for specified substances considered to present the highest levels of risk to other drivers.
  3. A discussion to see if other causes of impairment can be ascertained (eg.tiredness) and an appropriate response identified (eg prohibited to drive for a period)

 QUESTION 2: Do you support oral fluid screening for roadside drug testing of drivers? Are there other options not mentioned in this Discussion Document that could be considered?

As above

QUESTION 3: Is it reasonable to delay drivers by 3 to 5 minutes to administer a roadside drug screening test, in order to detect drug drivers and remove them from the road?

No. Such a delay would quickly lead to intolerable backlogs. A screening test needs to be able to be completed in around a minute. Our proposal in response to Question 1 would allow that.

QUESTION 4: Is a presence-based, zero-tolerance approach to drug driving, where presence of a drug is sufficient for an offence, appropriate for New Zealand?

No. Such an approach would punish people for behaviour that does not put others at risk. The issue is impairment and driver safety.  The “presence” of a drug i not the same as being impaired. Many
prescription drugs in low doses do not impair, but do in high doses. We already have a tolerated level of alcohol

QUESTION 5: Should there be legal limits for some drugs?

Yes. Any limits should be based on robust science that gives a reliable level for impairment, and reliable testing.

QUESTION 6: If roadside drug screening was introduced, which of the three approaches discussed above do you prefer?

  • Testing under the current ‘good cause to suspect’ criterion
  • Targeted testing following an incident or a driving offence
  • Random roadside drug screening, along the lines of the current breath alcohol testing model.

Are there other approaches that should be considered?

If a roadside screening test for impairment was developed, along the lines outlined in our answer to Question 1, we would support random testing. Otherwise, given the low correlation in substance testing between detection and impairment, we do not support drug screening.

QUESTION 7: If random drug screening was introduced, do you think it is a reasonable and proportionate response to the harm of drug driving? Are there circumstances in which it would be more or less reasonable?

Random testing using a method which is reasonably quick and which reliably tests that people are impaired, such as is the case with alcohol testing or with direct impairment testing as we have outlined in response to Question1, is proportionate to the harm of impaired driving. Otherwise we are not convinced it is.

 QUESTION 8: What criteria should be used to determine if a drug is included, or excluded, from drug screening?

If a secondary screening for substances is used, following an impairment screening as we have outlined in our answer to Question 1, we think that it should be based on robust evidence about which drugs are most likely to lead to accidents and which ones can be reliably tested for levels of impairment. We make the point that this may need to be based on some kind of matrix. A drug which causes moderate impairment but also leads to more risk taking may be a higher risk than a drug which causes higher impairment but leads to more cautious driving.

QUESTION 9: What regulatory process should be used to specify the drugs that are identified for screening?

An Order in Council is the appropriate regulatory process.

QUESTION 10: Should illicit and prescription drugs be treated differently?

No. If prescription drugs state that people should not drive under their influence, and there is robust evidence that they impair driving, then they should be treated the same as illegal drugs.

QUESTION 11: Should there be a medical defence for drivers who have taken prescription drugs in accordance with a prescription from a medical professional?

No. If a prescription drug causes driver impairment, we would expect that using it “in accordance with a prescription” means not driving.

QUESTION 12: If oral fluid testing was introduced in New Zealand, do you think there should be a requirement for a second drug screening test following a failed first test? Do you prefer another option for screening drivers?

Please see our response to Question1.

QUESTION 13: Do you think that drug driving offences should be confirmed with an evidentiary blood test? If not, what evidence should be required to establish an offence of drug driving?

Yes. Drug driving offences should be confirmed with an evidentiary blood test

QUESTION 14: Do you think an infringement offence (an instant fine and demerit points) or a criminal penalty (mandatory licence qualification, fines and possible imprisonment) is appropriate for the offence of drug driving?

We consider that an infringement notice for a first offence is appropriate, although higher levels of impairment as demonstrated on an impairment test, and also subsequent offences, might warrant criminal penalties.

QUESTION 15: Is there any other penalty or action in response to the offence of drug driving that you think should be considered?

Understanding the causes of offending and addressing those is usually preferable to simple punishment. We would encourage the Government to look creatively at this.

QUESTION 16: Do you think it is reasonable to penalise drivers who have used drugs, but may not be impaired?

No. The issue we need to address is road incidents caused by impaired driving. Punishing non-impaired drivers does nothing to address that.

QUESTION 17: Do you have anything else you would like to say about drug driving?

Cannabis law reform will have an impact on workplace drug testing and on the enforcement of traffic regulations. Concerns around this have been voiced by employers, unions and the NZ Police. It should be noted, however, that substance testing for impairment is an ineffective health and safety procedure. It rarely tests the number one drug of abuse in the workplace (alcohol) and does not test impairment from cannabis use but rather the presence of long-lived cannabis metabolites.

Cannabis law reform will require that we address these difficult issues, as the simple presence of cannabis metabolites will no longer be grounds for punitive action.

The issue of impairment is not just about cannabis use. Impairment can arise from sleep deprivation, relationship problems, pharmaceutical products and a range of other conditions that are difficult to individually test for.

For this reason:

  • We recommend that driving under the influence of cannabis is prohibited as per existing regulations on impairment.
  • We also recommend that the Government investigate impairment testing (as opposed to substance testing) as a more accurate measure of actual impairment in the workplace.

We also wish to highlight this comment, made publicly by researcher Dr Geoff Noller, PhD, Department of General Practice and Rural Health, Dunedin School of Medicine, University of Otago; in relation to cannabis impairment while driving.

“This is a complicated question, with interpretations of data often ‘muddied’ by unclear data or analyses that conflate historic use of cannabis with actual impairment. Having noted this, a recent detailed US analysis by the US National Highway Traffic Safety Association (NHTSA), following the legalisation of cannabis in a number of US states suggests that when data are correctly analysed, there appears to be either no elevated crash risk associated with cannabis only, or even a reduced risk of crashes.”