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Trawling for Drugs

Recent legislation changes mean police now have the power to drug test you when you are in control of a motor vehicle. The result has been a number of people charged with violations of s 11B of the Road Transport (Safety and Traffic Management) Act 1999, which reads as follows:

11B Presence of certain drugs (other than alcohol) in oral fluid, blood or urine

(1) Presence of prescribed illicit drug in person’s oral fluid, blood or urine A person must not, while there is present in his or her oral fluid, blood or urine any prescribed illicit drug:

(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is the holder of a driver licence (other than a provisional licence or a learner licence)-occupy the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle.

Maximum penalty: 10 penalty units (in the case of a first offence) or 20 penalty units (in the case of a second or subsequent offence).

What is really interesting about these prosecutions is that the accused person need not be under the influence of the drug whilst driving, the presence of the drug as ascertained by the test is sufficient for charges to be laid under the section.

Consider being pulled over for a random breath test. This test will not show that you drank a week ago, but it will show that at that point in time you are under the influence of a certain level of alcohol. In the implementation of the drug provisions however, a drug you may have taken a week ago may register a positive result in this roadside test, and you could lose your licence indefinitely. The point is that the drug doesn't have to be shown to have affected your driving; it must only be shown that the drug was present in your system.

Police officers may submit drivers to this test as a matter of course in random breath testing, avoiding the libertarian protections that have been put in place against police autocracy in conducting personal searches on members of society. These provisions are a widespread trawl for drug use, and due to its ramifications for civil liberties and privacy, is in need of attention from law reform bodies.

If this article interests you then we recommend that you consider joining the Young Lawyers, Criminal Law Committee which deals with these types of issues (it also looks pretty good on the resume). Contact our Vice President – Treasury, Justin Brown on treasury2010@uwslsa.com.au if you are interested in joining.