Smoked and burned
New Zealand’s new drug driving regime is here to stay. Darise Ogden finds out more about the process
On 29 October 2009, the Land Transport (Compulsory Impairment Test) Notice 2009 (Notice) was published in the New Zealand Gazette, and on 1 November, the Notice came into force, hailing the beginning of New Zealand’s offensive against drugged driving.
New Zealand’s drug-driving culture
In August 2009, the New Zealand Drug Foundation published a survey entitled Drug Driving in New Zealand: A survey of community attitudes, experience and understanding, which was inspired by New Zealand’s new drug-driving enforcement legislation. The aim of the research was “to assess New Zealanders’ knowledge, attitudes and behaviours around driving under the influence of psychoactive substances, including illicit drugs, prescription medicines, and alcohol, for both users and non-users, and drug drivers and non-drug drivers”. To do this, the Drug Foundation, in addition to reviewing the literature and interviewing the experts, also surveyed 1164 New Zealanders via the Internet.
The Drug Foundation asked Internet respondents whether they had driven within three hours of using drugs in the previous 12 months. Nearly 25 per cent of respondents said they had driven under the influence of cannabis. However, as they found that people who used drugs had been over-represented in the survey, the Drug Foundation warned that “rates of driving under the influence from the internet survey should not be interpreted as reflecting the prevalence of drug driving in the general population of New Zealand”.
It also asked respondents their level of agreement with the statement: “Random roadside testing would improve road safety in New Zealand”. Somewhat heartening, 40.2 per cent of respondents “totally agreed” and 30.3 per cent “somewhat agreed” that roadside drug testing would improve road safety.
Are you impaired?
Under the compulsory impairment test (CIT), a suspected impaired driver will be asked to undertake a number of tests: the eye assessment; the walk and turn assessment; and the one leg stand assessment. However, before a driver can be compelled to take the CIT, a police officer trained or untrained in CIT must have formed “good cause” to suspect that the person driving or attempting to drive a motor vehicle was impaired by drugs. Inspector Brendan Erasmuson, Prosecutions Advisor for the Police Prosecutions Service, says good cause to suspect may be formed by observing bad driving, observations of the driver, excluding alcohol as the cause of the impairment, things said by the driver, and the smell of drugs etcetera.
A CIT may be done at the roadside, or officers may require the suspected person to accompany them elsewhere for it to be undertaken. Under section 57A of the Land Transport Act 1998, a CIT must be carried out by an enforcement officer who is trained to give the test. Erasmuson says that this means that, in some cases, the CIT will be carried out by a second officer. Throughout the CIT, the officer is required to record everything that happens in each of the assessment tests.
If the CIT is not completed to the “satisfaction” of the trained officer, then the suspect may be required to have a blood test taken (this may be done at the roadside, or the suspect may have to accompany the officer to a place where the blood test will be taken). The blood test will be taken by a medical practitioner or a medical officer (“registered nurse, usually,” says Erasmuson). The blood will then be analysed by ESR, and if a controlled drug or prescription medicine is present, the person may be charged with the offence of driving while impaired.
Erasmuson says that the offence will be complete when two elements are present: the CIT was not done to the satisfaction of the officer, and a controlled drug or prescription medicine was present.
In some cases, a suspect may have a medical condition or disability that may affect his or her ability to undertake the CIT successfully. Under clause 5 of the Notice, the officer is required to advise suspects of their requirement to disclose this prior to the CIT being carried out. Suspects are also required to advise the testing officer, under clause 6(1)(b) of the Notice, as to whether or not they’re wearing contact lenses.
Reading the test
For lawyers on both sides of the drug-driving courtroom, the issue will be in how to interpret the science that is presented to them.
Forensic scientist Anna Sandiford says it’s important to realise that science should not just be accepted at face value. “To me, it’s part of the scientific due diligence process. You wouldn’t allow a client to buy a business, for example, without going through a due diligence process… Science is exactly the same.”
Using cannabis as an example, she says that THC, the active ingredient in cannabis, is only present in the body, or detectable in a blood sample, for one to three hours after it’s been taken. This means that if there’s a delay in taking the blood sample from someone who is “stoned”, then by the time the blood sample is taken, they may have metabolised all the THC, leaving behind only metabolites. “Metabolites don’t produce the high for which people take cannabis,” she explains. They can, however, stay in a person’s bloodstream for days, even weeks, after the drug has been taken – it is dependent on the individual, the strength of the cannabis, and how regularly he or she uses it, says Sandiford. And even the effect of the drugs themselves varies, with some detectable for longer periods of time. “P will break down in a given way with certain set metabolites, same as cocaine, and so again, we’ll be looking for what’s been detected, and at what level, and that person’s history of abuse.”
Sandiford says that, generally speaking, you want to get a blood sample taken within 12 hours of the drugs being taken. You also need to look at the whole picture, she says; why the person was stopped by the Police, what the officer observed, and what the blood results tell you. With the holiday season fast approaching, and the Police gearing up to protect our roads from the vagaries of drunken and drugged drivers, lawyers who practice in this area (prosecutors and defence lawyers alike) need to ensure that they are fully up to speed on what will be required.
Anna Sandiford trained in forensic science in New Zealand. She moved to the UK in 2002, and during her six years in England, the Police/Crown approach to drug driving was amended and honed to its current level. She has been involved with hundreds of drug-drive cases over the years, has given evidence in Court, given demonstrations of the impairment tests, and still works closely with one of the leading authorities on drug driving and workplace drug testing. She can be contacted via her website www.FSRL.co.nz.
If you want to know more about drug driving, you might like to attend the LexisNexis conference, Drunk and Drugged Driving Law Update 2009, which is being held on 2 December 2009 at the Hyatt Regency, Auckland. For more information on the conference, or to register, email seminars@lexisnexis.co.nz.
NZLawyer, 27 November 2009