Drug driving testing Te whakamātau kaihautū mō te whakapōauau

Drug driver testing was developed with feedback from an independent expert panel, a range of road safety partners, stakeholders, and refined through the select committee process.

Following a robust procurement and testing process, NZ Police were unable to identify a device that met the legislative criteria to recommend to the Minister of Police for approval.

What sort of testing of devices was undertaken?

Testing was undertaken as a part of the Police procurement process. The testing looked at the accuracy of devices and whether a device would be able to indicate recent use of a qualifying drug/s.

No device was found that could satisfy the criteria and could be used to issue infringement offences.

Why is roadside oral fluid testing available in Australia, but not here in New Zealand?

Australia uses oral fluid testing devices as a roadside screening tool. If the presence of drugs is found, the next step is an evidential blood or saliva test. This test is sent for analysis at a laboratory to confirm the presence of drugs, and then the relevant penalty is applied.

Our regime sought to use these devices as a roadside testing tool, a device that detects qualifying substances above a threshold to allow the issuing of roadside infringements, similar to how alcohol breath testing is run in New Zealand.

As the devices would be used as testing devices, the legislation set out criteria and standards that the devices needed to meet. Following a procurement process, no appropriate device was found.

On 11 March 2023, the Land Transport (Drug Driving) Amendment Act came into force. This amended the Land Transport Act 1998 to introduce a range of measures to deter impaired driving on our roads.

More information about how NZ Police will implement and enforce the Act can be found on their website: https://www.police.govt.nz/advice-services/drugs-and-alcohol/new-drug-driving-legislation

The Land Transport (Drug Driving) Amendment Legislation was passed in March 2022.

The legislation brought in a range of new offences and penalties to help reduce the harm that impaired driving caused on our roads.

The legislation also brought in the ability for Police to conduct roadside oral fluid testing. Following a robust procurement process, as of March 2023, a suitable device had not been able to be found.

Further work is underway on the next steps for roadside oral fluid testing.

The Independent Expert Panel on Drug Driving (the Panel) completed its final report in April 2021 on recommending statutory limits for drug concentrations related to impaired driving. This Report provides further explanation for the Panel’s earlier advice on blood infringement thresholds and criminal limits.

Cabinet agreed to set criminal limits and blood infringement thresholds in legislation based on the advice of the Independent Expert Panel on Drug Driving (the Panel). 

These limits and thresholds have been added to the Bill via Supplementary Order Paper and will be considered by the Transport and Infrastructure Committee.

The Supplementary Order Paper also:

• ties the blood infringement thresholds to the relevant infringement offence provisions throughout the Bill
• amends the criteria in the Bill to enable criminal limits and infringement thresholds to be set and amended in future
• introduces a medical defence pathway for oral fluid infringement offences that does not require a blood test
• amends the Gazette notice requirements for approved oral fluid testing devices to require in-built thresholds to be published
• makes a minor change to the wording of drug driving offences to align them with drink driving offences.

Beehive release: Expert panel proposes criminal limits for drug driving(external link)

You view the Supplementary Order Paper on the New Zealand Parliament website

Land Transport (Drug Driving) Amendment Bill (New Zealand Parliament)(external link)

In December 2020, the Independent Expert Panel on Drug Driving (the Panel) provided Ministers with recommendations for criminal limits and infringement thresholds for blood drug concentrations.

On 17 September  2020,  the Independent Expert Panel on Drug Driving provided interim advice on oral and blood drug concentrations in an impaired driving context.

This report explains the difficulty the Panel had in meeting its original Terms of Reference (TOR). The Panel advised that it could not meet its original TOR to recommend limits for drugs that align with a blood alcohol concentration of 80 mg per 100 mL — the current level for a drink driving criminal penalty for drivers over 20. The Panel advised that this was not possible and recommended reframing their TOR to remove the link between blood drug concentration and impairment equivalence to a BAC of 80 mg/100 mL.

In September 2020, the previous Ministers agreed to amend the Panel’s TOR to enable the Panel to recommend criminal limits and thresholds based on:

• limits set in other jurisdictions
• drug concentrations in impaired drivers in New Zealand
• data from the scientific literature.

The Associate Minister of Transport introduced the Land Transport (Drug Driving) Amendment Bill into Parliament on 30 July 2020.

The Bill passed its First Reading on 5 August 2020, and has been referred to the Select Committee for consideration. The Committee will meet to consider the Bill after the 2020 General Election and will have 6 months to examine the Bill and prepare a report for the House.

Joint Ministers’ media statement: Roadside drug driver testing Bill introduced (external link)

The Bill, Bill commentary and the departmental disclosure statement (external link)

Public submissions are being called for on the Bill

The Select Committee has invited public submissions on the Bill by Friday, 26 February 2021. Once submissions have closed, the Committee will then hold public hearings to listen to some of those who made submissions. After hearing submissions they work through the issues raised, and decide what changes, if any, should be made to the Bill. 

Learn more on how to make a submission on the New Zealand Parliament website. 

Make a submission on the Land Transport (Drug Driving) Amendment Bill(external link)

Key elements of the Bill

The Bill proposes a new random roadside oral fluid testing regime. This oral fluid testing regime would sit alongside the current compulsory impairment test (CIT), approach to drug driving.

Under the new regime, a police officer would be able to stop any driver of a motor vehicle and administer an oral fluid test, even if they do not have good cause to suspect a driver has consumed drugs. This is consistent with the existing approach to drink driving enforcement.

Under the proposed regime, if a driver fails 2 consecutive oral fluid tests that show the presence of a drug, this leads to an infringement offence. Drivers that fail the oral fluid tests can choose to have an evidential blood test if they wish to dispute the results of the oral fluid test.

If the officer has good cause to suspect a driver has consumed drugs, they can require the driver to carry out a CIT. This can only be done in certain circumstances:

• before beginning the oral fluid testing process — once a driver has been required to undergo a CIT, they cannot be required to take an oral fluid test
• when a driver has passed the first oral fluid test, or failed the first and passed the second, but the police officer has good cause to suspect the driver has consumed drugs the device may not be able to test for
• when more than 1 drug is identified on the first oral fluid test.

If a driver fails a CIT test police may then require them to undertake a blood test. Evidential blood tests could continue to be taken from injured drivers, and the Bill also enables police to require a driver to have a blood test if they have failed 2 oral fluid tests and have been involved in a crash that has resulted in another person being injured or killed. If qualifying drugs are found in their blood sample, they could be subject to either infringement or criminal penalties, depending on the levels of the drug in their system.

On 16 July 2020, the Independent Expert Panel on Drug Driving provided interim advice on criminal limits for THC and methamphetamine. The Panel initially focussed on cannabis and methamphetamine, as these are the most prevalent drugs detected in deceased, hospitalised and impaired drivers in New Zealand.

The Independent Expert Panel on Drug Driving has been established to provide advice to the Government on the limits to be specified for drugs in legislation, the low-level tolerance thresholds to be applied to the detection of drugs in blood, and the cut-off thresholds to be included in oral fluid testing devices.

The Panel will provide advice on setting criminal limits for drug concentrations in blood.

The Panel will also prepare advice on specifying low-level tolerance thresholds to be applied to oral fluid tests and detecting drugs in blood by the Institute of Environmental Science and Research, to avoid penalising drivers who have:

• accidental or passive exposure to drugs
• a low residual level of a drug that is unlikely to impair driving in their blood due to previous but not recent use
• consumed a prescribed dose of a prescription or over-the-counter medicine that is unlikely to impair driving.

The Panel has initially been established until April 2021.

These people have been appointed to the Panel:

• Dr Helen Poulsen (Chair) (toxicology)
• Associate Professor Malcolm Tingle (pharmacology)
• Dr Sharon Kletchko (medical specialist)
• Andrew McGlashen (pharmacy)
• Professor Ian Shaw (toxicology and biochemistry).

On 18 December 2019, the Government announced its proposal for a new drug driver testing scheme, which would introduce compulsory random oral fluid testing for drug driving. Under the proposed regime, if a driver fails 2 consecutive oral fluid tests that show the presence of a drug, this leads to an infringement offence. Drivers that fail the oral fluid tests can choose to have an evidential blood test.

The new scheme would also include:

• keeping the current compulsory impairment test (CIT), with some restrictions on police officers switching between the CIT and the oral fluid testing processes
• criminal limits for drugs in blood to be prescribed in legislation, based on advice from an independent panel of experts
• graduated sanctions, including infringement and criminal penalties for drug driving offences, based on exceeding the limits prescribed in legislation
• a harm minimisation approach to drug driving, providing both opt-in and compulsory health referrals.

Based on an analysis of the risk of New Zealand drivers crashing if they have taken drugs, the drugs or drug classes that are proposed for testing are:

• THC — the psycho-active ingredient in cannabis
• Methamphetamine
• Enzodiazepines — sedatives
• MDMA — ecstasy
• Opiates, such as morphine, and cocaine.

The Government agreed to undertake public consultation on enhancements to New Zealand’s drug impaired driving regime

The purpose of the consultation was to get public feedback about possible approaches to improving our drug driving system, including the methods that could be used to screen and test for drugs, the circumstances in which a driver should be tested, what drugs should be tested for and how police should deal with drug driving offences. 

We received 88 submissions in response to the discussion document and many noted that the issues were complex.

Although views on some aspects differed, most submitters favoured a zero-tolerance, presence-based approach to roadside drug testing, although there were concerns about the accuracy of oral fluid testing devices and Māori being disproportionately impacted by drug driving enforcement measures. The majority of submitters supported taking a second oral fluid test if someone failed the first test, followed by taking a blood sample for evidential purposes. However, there was mixed support for random drug testing of drivers.

Other feedback included:

• the importance of raising public awareness about the risks of drug-impaired driving
• current CIT should be used more often
• legal limits for illicit and prescription drugs could be explored in the future
• drivers who are impaired by prescription drugs should receive the same penalties as those impaired by illicit drugs — but have a medical defence if they are not impaired
• taking a broad approach to penalties, including non-enforcement options and health-based initiatives.

The Government took the submissions, and policy advice from officials, into account as when it considered options to improve New Zealand’s drug-impaired driving scheme.

The Government approved the release of a Discussion Document on drug driving, subject to editorial changes.

We started working with our government transport partners on a new road safety strategy and a planned programme of short to medium-term initiatives to improve road safety. This included strengthening the detection and deterrence of drug-impaired driving.