Q&A – Consultation on enhanced drug driver testing

What would enhanced drug driver testing look like?

Driving under the influence of drugs is an issue on our roads and it needs to be addressed. We test drivers for drugs now, using a behavioural test, but if we can improve our roadside drug testing regime, we will be able to deter more drivers from using drugs before getting behind the wheel. We will also be able to identify more drivers who are putting others and themselves at risk by taking drugs and driving.

We don’t know exactly what that enhanced testing will look like, but we are consulting with the public on a number of factors that will be considered during its development. This includes what drugs should be tested for, what methods should be used to screen and test, and how drivers who have used drugs should be dealt with by Police or other agencies.  

What would enhanced drug driver testing achieve?

If we can improve our roadside drug testing regime we will be able to deter drivers from using drugs before getting behind the wheel. Surveys show that only 26 percent of people expect to get caught drug driving compared to 60 percent who expect to get caught drink driving. 

We will also be able to identify more drivers who are putting others and themselves at risk by taking drugs and driving. In 2018, 71 people were killed because drivers crashed on New Zealand roads with drugs in their system.

Consultation

When will consultation start and how will you share the information collected?

Consultation will start on 15 May 2019 and run for a period of six weeks. The results of the consultation will be released publically.

How will you be consulting?

We have developed a discussion document that ask a series of questions about what an enhanced drug driver testing regime could look like. We will be speaking to a number of groups with an interest in this area.

The Current situation

What evidence is there that drugs negatively impact driving

International research shows that many illicit, recreational and prescription drugs slow reaction time, increase risk taking, and make people tired. Drugs are often used in combination with alcohol, which magnifies their impact.

Is drug driving a problem in New Zealand? How big is it?

In 2018, 71 people were killed when drivers crashed on New Zealand roads with drugs in their system. This compares to 109 people killed when drivers crashed with alcohol in their system.

Are drivers in New Zealand tested for drugs now?

Drivers are given a behavioural test which must be carried out by trained Police officers when the officer has established  ‘good cause to suspect’ a driver is under the influence of drugs. If a driver fails this test, the next step is an evidential blood test.

The behavioural test is very effective for identifying drug drivers - around 90 percent of them result in drug driving criminal convictions - but it can take up to an hour and a half to complete. This, and the fact an officer must have ‘good cause to suspect’, means not enough tests are carried out to act as a sufficient deterrent of drug driving.

How many behavioural tests are carried out annually?

In 2017/18, 473 blood tests were undertaken following failed behavioural tests. While Police don’t record the total number of behavioural tests undertaken, it is likely the total number is in the hundreds, not the thousands. This test is effective but can take up to an hour and a half to complete. This, and the fact an officer must have ‘good cause to suspect’, means not enough tests are carried out to act as a sufficient deterrent of drug driving.

How many of these tests result in a positive test for drugs?

In 2017, 435 tests resulted in a drug driving criminal conviction – around 90 percent of the total tests undertaken.

What drugs are currently tested for?

A full drug analysis can detect 200 illegal and prescription drugs, including the most commonly used illegal drugs like cannabis, ecstasy, and methamphetamine. This analysis is undertaken from blood provided by drivers who have failed the initial behavioural test, drivers who are hospitalised following a crash and deceased drivers. 

Changes to current regime

What drugs would be tested for as part of an enhanced regime?

We intend to seek public feedback on this as part of the consultation process. If we introduce roadside oral fluid testing, it would likely include testing for the most commonly used illegal drugs. It could include a number of prescription drugs that are known to have a detrimental impact on driving ability.

If cannabis is legalised will people be able to consume marijuana and drive?

This is something we will seek feedback on during the consultation. Some countries have established legal levels for THC (the active agreement in marijuana) that aim to correlate with impairment, similar to alcohol legal limits. Others operate a zero tolerance policy when it comes to THC and driving.

Will there be a limit for the presence of drugs, like there is with alcohol?

Limits are used in some countries but as drugs affect people in different ways it’s harder to set limits that are fair to everybody, so they tend to be set at quite high levels. This is something we will seek feedback on through consultation.

What does this mean for people who are on prescription medication?

Many prescription drugs are known to impair driving and carry warnings on their bottles advising this. But we don’t want to penalise people if they are taking drugs in accordance with their prescription and are driving when they are safe to do so. There is currently a medical defence that protects drivers from being penalised in this situation and that could continue under a new regime.

Drivers need to take the advice of their doctor or pharmacist seriously. This may sometimes mean not driving for a time after using some prescription drugs.

Will drivers be prosecuted if they are caught drug driving

This will be part of the consultation. Drug driving is currently an offence with criminal penalties. It may be appropriate to introduce infringement penalties for some lower levels of offending, as is the case with drink driving. At its core, drug use is a health issue. We also need to think about non-enforcement options, to address the underlying issues associated with drugs.  

Will drivers be prosecuted for other drug offences if they test positive for illicit substances?

This will be part of the consultation. Our current drug driving scheme prevents drug testing in the land transport context from being used for offences under other drug-related legislation. Measures to enhance the current scheme could be constructed in the same way.

What about synthetic cannabis?

The technology of the devices that can be used to detect drugs at the roadside is constantly evolving and in the near future, they may detect synthetics drugs. Blood tests can already detect a number of synthetic drugs, including synthetic cannabis.

Are you looking at introducing oral fluid testing?

Many countries do roadside oral fluid testing, because it is a relatively quick, efficient and practical method of testing drivers at the roadside. For example, roadside oral fluid testing is used in a number of countries including Australia, Canada and England.  There are a number of options for when this type of testing could be performed, for example randomly or following an accident, and this will be part of the consultation.

How reliable are oral fluid tests?

They are becoming increasingly accurate at identifying impairing substances. Recent studies have shown high results for accuracy in detecting the presence of some drugs. Many devices can be configured so that they only detect moderate or high levels of a drugs, to protect against the risk of false readings.

Unlike an alcohol breath test, oral fluid screening devices cannot detect the level to which a person is impaired. This means drivers who have used drugs or medications, but are not impaired, could still test positive with an oral fluid test.

It would be important that a positive oral fluid test is supported by another test such as a blood test before a person is deemed to have committee an offence.

What about the Bill of Rights Act?

If new measures to address drug driving involve detaining drivers and taking samples of blood or oral fluid, there will be Bill of Rights Act implications. Generally speaking, the rights and freedoms affirmed by the Bill of Rights Act may only be subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Before introducing new legislation to tackle drug impaired driving, the Government will need to be sure that measures it proposes are justified in order to address the harm of drug driving, as was the case when compulsory breath testing for alcohol was introduced.

What if the public consultation shows that New Zealander’s don’t support enhanced drug driver testing?

No one wants drug impaired drivers on the roads endangering themselves and others. The challenge is coming up with ways to address the problem.

We are consulting because we want to make sure any changes we make take into account the views of the public. We want to implement something the public can support.