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2005/07: Should roadside drug-testing of drivers be continued?
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What they said ...
'You cannot have a program that allows for someone who is innocent to be put in a position where they are suffering anxiety and distress'
Norman Marshall of the Australian Drug Management and Education Group
'We are leading the world in this and the fact that 31 per cent of drivers involved in fatal road collisions have drugs other than alcohol in their blood seems to suggest there is a problem here'
Victorian Police Minister Andre Haermeyer
The issue at a glance
On December 13, 2004, Victorian motorists became the first in the world to be subjected to roadside testing for drug-use. The test is intended to be able to detect cannabis and methamphetamines, which include speed.
The trial program met with an enthusiastic reception within the media and was seen as a major development in improving road safety.
The test then became the subject of controversy when the first person it supposedly detected as driving under the influence of drugs was shown by follow-up testing to be drug-free. A second driver was similarly indicated by the roadside test to be drug-affected, only to have this finding dismissed after follow-up testing.
These misreadings have fuelled a popular demand that the roadside testing be halted until the test is modified to make it more reliable.
The Victorian government has indicated that the pilot driver drug-testing program will continue and that the system as a whole is working.
Background
Saliva swabs are used to check for cannabis and methamphetamines (speed and ice).
Drivers are required to provide a saliva sample by touching an absorbent swab with their tongue. The sample is then screened at the roadside.
Drivers who return a positive test result are required to provide a second saliva sample.
Drivers who produce a positive test result with the second sample are interviewed and the sample sent for laboratory analysis. The driver can be provided with a portion of the second sample, which they may choose to have independently analysed.
No charge is laid until the results of the laboratory analysis are known. Drivers are informed within a few weeks if the laboratory analysis confirms an illicit drug was present and whether they are to be fined or prosecuted for an offence.
It is claimed that cannabis can be detected up to four hours after use and methamphetamine use can be picked up some 24 hours after taking the substance.
For a first offence, motorists face a fine of $300 and the loss of three demerit points.
For a second offence, motorists face court, a six-month loss of licence and fines of up to $1200.
People who lose their licence as a result of drug driving offence must undertake a drug education and assessment course before being eligible to get their licence back.
In 2000, police were granted the power to enforce blood and urine tests on suspected drug-drivers. In December 2003 Victoria Police were given the power to undertake roadside drug testing in the manner described above. The new roadside testing is intended as a refinement that, because of its immediacy, will have a greater deterrent effect.
Both New South Wales and Tasmania are intending to trial a similar program to Victoria's in 2005.
A far less technologically sophisticated system is about to be introduced in the United Kingdom, with drivers suspected of being under the influence of drugs being asked to stand on one leg and to guess how long it takes for 30 seconds to pass, as well as being checked for physical signs such as dilated pupils.
Internet information
The Bracks Government's Road Safety Strategy 2002-2007, Arrive alive!, is intended to provide Victoria with the safest road system possible, change driver attitudes and behaviours and to improve significantly the road safety outcomes for all road users.
The arrive alive! Internet site contains a detailed explanation of the new roadside drug tests as well as answers to commonly asked questions about them.
This information can be found at http://www.arrivealive.vic.gov.au/c_drugsAD.html
On April 23 2003, the ABC's science program Catalyst screened a program looking at the effects of drug use on driving and at attempts to detect drug use among drivers. The program was titled Random Drug Tests. A full transcript of this program can be found at http://www.abc.net.au/catalyst/stories/s838743.htm#transcript
On November 12, 2004, the New South Wales Government announced its intention to trial a roadside drug testing program similar to that currently operating in Victoria. The details of this announcement can be found at http://www.rta.nsw.gov.au/newsevents/2004_11_drugdrivetesting.html
In December 2004 the New South Wales Parliament published a briefing paper titled, 'Drink Driving and Drug Driving'. It was written by Rowena Johns. It considers the incidence of drug driving and drink driving in News South Wales and considers a number of testing procedures. It gives information on the situation in Victoria and other states.
The full text of this briefing paper can be found at http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/501e339c7d576080ca256f81001fe9b4/$FILE/drinkdrugdriving.pdf
This is a pdf file and requires Adobe Acrobat Reader.
In 2004 the ACT's Road Transport Website published an overview titled, 'Drug Driving and Road Crashes'
This looks at the extent of drug driving across Australia, the characteristics of drug drivers and action proposed in different Australian jurisdictions to reduce drug driving. The actions to be taken in Victoria receive special consideration.
The full text of the overview can be found at http://www.transport.act.gov.au/word/drugoverview.doc
The Australian Academy of Science (AAS) has as one of its aims promoting science education in the general community and increasing public awareness of science.
On December 8 2004 the AAS posted on its Internet site an article titled, 'The dope on drug-impaired driving'.
This article looks at the prevalence of drug driving, the effects of drug driving and different methods of testing for drug driving. It pays particular attention to the tests being conducted in Victoria.
The full text of this article can be found at http://www.science.org.au/nova/085/085key.htm
Arguments against the roadside drug-testing of drivers
1. Commonly used medicines may trigger false positive readings in roadside drug tests
It has been claimed that headache pills, cold tablets and anti-inflammatory drugs could give the same positive saliva test results as illicit substances because they have similar chemical structures.
On this basis, workplace drug test supplier, Andrew Leibie, and Australian Drug Management and Education spokesperson, Norman Marshall, have claimed that the possibility of such confused readings make the saliva tests unreliable.
Mr Marshall has stated, 'Drugs like antibiotics and anti-inflammatories can pick up a false positive, even things like pain-killers.'
Mr Leibie, the manager of D-Tec, explained further that cold and flu drugs containing pseudoephidrine could give an inaccurate reading.
2. Roadside drug testing has not proved reliable when tried in other countries
Gwen Wilcox, the Chief Executive Office of the Australian Drug management and education Group has said that similar testing attempts in Europe and the United States had been deemed unsafe and inaccurate.
Ms Wilcox said inaccuracies in the tests would leave positive tests open to serious challenge in court.
3. False positive readings can cause much distress to those suspected of drug taking
John De Jong, the first Victorian to have a false positive reading for drug use as a driver has claimed, 'No one should go through this ordeal. To be falsely accused of having these illicit drugs in your system is a huge burden to bear.'
Mr De Jong has further claimed, 'It's not what's done to me. It's what it's done to my family ... they've been very emotional. They were as much in disbelief as I was.'
Mr De Jong has also complained that his case was exploited by Victoria Police to increase the profile of their new drug testing procedures with the media. Mr De Jong said, 'They put me in front of the media from the word go, and said I had tested positive to amphetamines and cannabis.'
Mrs De Jong has said that she was appalled that her husband had been 'named and shamed' and paraded as a drug taker.
Mr Norman Marshall of the Australian Drug Management and Education Group has argued, 'You cannot have a program that allows for someone who is innocent to be put in a position where they are suffering anxiety and distress.'
4. Those wrongly accused of driving while under the influence of drugs are likely to take legal action against the Victorian Government
John De Jong, the first Victorian to supposedly have been shown to have been driving while under the influence of illicit drugs, is now likely to sue the Victorian Government for defamation. Mr De Jong's supposed drug-driving received a lot of publicity. This negative publicity has been claimed to have harmed Mr De Jong. The initial readings were later found to be inaccurate. Mr De Jong's lawyer, Mr Richard Leder, has claimed that his client could be in line for a $150,000 payout.
Critics of the trial program have claimed that litigation against the Victorian Government undertaken by those wrongly accused of drug-driving could prove to be both very time-consuming and expensive.
This program has been compared to the faulty speed cameras which have lead to many Victorians being wrongly fined and in some cases having their licences suspended. The Victorian Government is expected to lose $26 million in reimbursements and lost revenue as a result of faulty speed cameras. It has been suggested that faulty drug tests could prove to be similarly costly.
At an international toxicology conference in Melbourne in 2003 Dr Swann gave a presentation on saliva testing in which he claimed, 'If you use this on the roadside you will get a false positive and it will take days to get a true result.
And depending on who is being tested you are leaving yourself open to being sued for pain and suffering, defamation and psychological shock.'
5. The Government is using roadside drug testing as another revenue raising measure
Some critics of the drug testing pilot have argued that it is essentially a revenue raising measure rather than an attempt to reduce the road toll.
In a letter published in The Herald Sun on December 15, 2004, Mary Romayne claimed, 'The punishment smells of another way of collecting revenue under the guise of concern for road users.
If the Government were serious about [reducing the road toll] the guilty drivers would have their licences suspended. Paying $300 will hurt temporarily, but it will not deter regular users.'
6. Faulty roadside drug tests may reduce driver confidence in road safety measures
There are many who are concerned that faulty roadside tests may undermine public confidence in Victoria Police's road safety measures. It has been noted that the earlier episode involving faulty speed cameras has had such an effect, reducing popular respect for and confidence in these cameras.
An Age editorial published on December 23, 2004, made a number of similar points with regard to roadside testing for drug use. The editorial argued, '[The State Government] ought to be aware their whole approach to road safety is at risk of being discredited in the eyes of the public, many of whom are suspicious of the new technology and would much prefer the reassuring human approach of a greater police presence on our roads.
Drivers are owed a full explanation of what happened. They need credible assurances that testing devices will be reliable and fairly administered. As we saw with the refusal to take immediate responsibility for faulty speed cameras, any official action, error or oversight that erodes public trust in the system is itself a threat to road safety.'
It has been claimed that if road safety measures are to have an educative effect and to act as a disincentive to those who might otherwise speed or take drugs and drive, then motorists need to believe that detection devices are likely to be accurate.
7. Police do not appear to have been properly trained in the use of the roadside testing equipment
It has been claimed that one of the reasons why roadside testing appears to be less reliable than it should be is that police have not been properly trained in the use of the equipment. The two inaccurate results that have been reported since the new program was put in place may have occurred as a result of inadequate training.
In a letter published in The Herald Sun on December 15 2004 John Howes commented on what he had observed when watching police take saliva samples on television.
Mr Howes wrote, 'I was dismayed to see the police appeared to not change gloves after each test.
The way they handle the equipment lends itself to a strong chance of tests being contaminated.'
The Victorian Opposition has suggested that problems with the new system may attributable to the new program not being adequately resourced. They claim that Victoria Police has claimed that an insufficient allocation of police officers to drunk driver testing has reduced the effectiveness of this program. The Opposition has suggested that the new roadside drug testing program may also be under resourced.
Arguments in favour of the roadside drug-testing of drivers
1. Driving while drug-affected is a significant cause of road fatalities
334 Victorians died in road accidents in 2004. Post mortem tests have indicated that nearly a third of those who died in road accidents had drugs in their system. It is further estimated that a quarter of men and eight per cent of women under 25 have driven under the influence of illegal drugs.
Police figures indicate that in two of the past three years, more people have been killed on the roads with illegal drugs in their system than those killed with a blood-alcohol reading above .05
According to VicRoads, methamphetamines increase risk taking and aggression, and are often used by drivers to allow them to continue to drive even though they are too tired to do so safely. Cannabis impairs mental functions and reduces concentration.
Police Minister Andre Haermeyer has stated, 'We are leading the world in this and the fact that 31 per cent of drivers involved in fatal road collisions have drugs other than alcohol in their blood seems to suggest there is a problem here.'
Those who support roadside drug-testing for Victorian motorists argue that we need to find a means of both reducing the likelihood that people will drive under the influence of illicit drugs and of detecting those who do. It is claimed that the situation is directly comparable to roadside testing for drunk driving. This measure has succeeded in reducing the number of motorists who drink and drive and makes it possible to detect and penalise those who do.
2. The roadside testing is intended to be a screening procedure. It is not intended to be conclusive.
Defenders of the roadside testing scheme have argued that despite the two false positive reading, the program is working as it is intended to do.
According to this line of argument, the roadside testing is meant only to indicate those who may have been using either cannabis or methamphetamines. No one is charged as a result of roadside testing. The conclusive testing is that done in the laboratory. It is only after a positive lab test that a driver can be charged.
Therefore, it is claimed, the two false readings are no cause for concern as each was detected by the follow-up laboratory test.
Police Minister Andre Haermeyer has noted that the drug testing device differed from breathalysers in that a positive result could not be relied on as evidence in court. 'This is not an evidentiary device. All it does is screen.'
The Minister has also said: 'The worst that can happen if the evidentiary test doesn't confirm the preliminary tests is that you have been inconvenienced.'
Police Minister Andre Haermeyer has further claimed in relation to Mr De Jong's being shown not to have driven while drug affected, 'It shows that the system is working. It shows that whatever occurs on the side of the road is either validated or not validated in the subsequent laboratory test. And that's what the system is about.'
3. Roadside drug testing procedures have been modified to reduce the risk of error
It has been argued that the current program of roadside testing is a pilot and that it is being continually evaluated and improved.
Assistant Police Commissioner (Crime), Bob Hastings, has claimed that since the two early false positive readings refinements have been made to the way police are conducting the roadside saliva tests to improve their accuracy. The changes relate to how the roadside screening tests were conducted and to make sure police were handling the device in accordance with the manufacturer's instructions.
Commissioner Hastings has stated, 'We have continually refined the way we do business on the side of the road, we are continually evaluating the equipment.'
4. The media, not Victoria Police or the testing procedures, are responsible for Mr De Jong's ordeal
Assistant Police Commissioner (Crime), Bob Hastings, and Police Minister, Andre Haermeyer, have claimed that it is the media who mistreated Mr De Jong by identifying him.
Mr De Jong has confirmed that police had at no stage identified him to the media and had asked the media not to identify him either. Mr De Jong's identity appears to have became known when he gave a short interview to a reporter half an hour after he emerged from the second drug test.
Victoria Police have argued that it is the media and not the police who subjected Mr De Jong to public censure and exposure.
5. Roadside drug testing is intended to change driving habits
Many drivers do not appear to realise that cannabis use or amphetamine use pose a significant risk to drivers. Victoria Police claim that one of the aims of the new program is to increase public awareness of drug driving and to make drug users realise that if they take drugs and drive they may be detected.
A 19-year-old speed user interviewed by The Age argued that though he felt anti drug laws were unreasonable he would change his drug-driving habits if he got caught. Of the seven other drug users The Age interviewed, six said they would not take drugs and drive because they were concerned about being caught and fined or losing their licences.
Those who support the continuation of the pilot testing program argue that it needs to continue if it is going to have the desired deterrent effect.
6. The current testing procedures are only a trial
Police Minister, Andre Haermeyer, has claimed that the difficulties that have occurred in the early stages of the new drug driving testing procedures are minor and are to be expected. Mr Haermeyer has referred to them as 'teething problems'.
The testing process is only in its trial stage. The legislation allowing for the current roadside drug testing in Victoria has a sunset clause which means it will lapse in July 2005. Prior to that date, however, the operation of the testing procedures will have been extensively reviewed.
At this point it is clearly not anticipated that roadside testing will be discontinued, though the manner in which it operates may well be modified. For example, at the review stage the penalties for those found to have driven while drug affected may be strengthened. It is also possible that stricter procedures may be put in place to prevent the media releasing the names of those who are merely suspected of drug-driving before the conclusive laboratory tests have been completed.
7. There is strong community support for roadside drug testing
Home and car insurer, AAMI, has regularly conducted surveys to determine community attitudes to drug-taking and driving and to roadside testing for drug-taking. These surveys have found widespread community support for such testing.
Mr Geoff Hughes, a Public Affairs spokesperson for AAMI, has stated, 'Our research shows support for random drug testing of drivers has remained strong over the past three years and was highest in 2003.'
Nationally, 90 per cent of people agreed there should be random drug testing of drivers.
This level of community support for the random drug testing of drivers appears to suggest that the pilot should continue in Victoria. It also indicates that such schemes are likely to be well-accepted in both Tasmania and New South Wales. Each of these states plans to introduce such tests in 2005.
Further implications
The media interest in the two false positive readings in early roadside drug tests appears to have obscured some of the larger issues involved in such testing.
One of these is whether the mere presence of an illegal substance in his or her system should be sufficient to have a driver charged with an offence.
Currently it is not an offence to drive with alcohol in one's system unless a probationary driver. What is significant for all other drivers is the level of alcohol in their bloodstream, not the fact that they have drunk before driving. This is because the law punishes only those drivers whose driving is considered likely to have been impaired by their drinking.
There are those who argue that a similar standard should be applied to driving and other drug use. It is claimed that only those drivers whose driving can be assumed to be harmed by the substances they have taken should be charged. This means that drug driving tests would have to be far more sophisticated and would have to take into account the level of a substance detected in a person's body fluids. There would also have to have been benchmarks established to indicate at what level the particular drug that has been taken is likely to reduce driving competence.
It is unlikely that any of these refinements will occur as they would significantly complicate the current procedures and would add to the expense and difficulty of administering the system.
What the current system argues for is zero tolerance of illicit drugs being used by drivers. This hardline approach seems to be legitimised in the public mind by the fact that the drugs being tested for are not legally available. However, if this drug testing program is continued it is possible that many of those charged with drug use while driving will argue that they had not taken sufficient of the substance to effect their driving. This may well lead to legal challenges against some drug driving prosecutions.
Civil libertarians suggest that the current approach constitutes a significant breach of privacy for what may be a negligible effect on road safety. However, defenders of the scheme argue that the real power of random testing is in the message it sends: drug-driving is dangerous and will not be tolerated.
Sources
The Age
28/11/04 page 1 news item by Jason Dowling, 'Motorists face drug tests over Christmas'
11/12/04 page 11 news item by Lorna Edwards, 'From Monday, if you take drugs, then drive, you're likely to be nabbed'
14/12/04 page 1 news item by Dan Silkstone, 'Roadside drug test swiftly snares offender No.1'
16/12/04 page 5 news item by Selma Milovanovic, 'Driver denies taking drug detected in roadside test'
23/12/04 page 10, editorial, 'Faulty cameras and drug tests sap public trust'
24/12/04 page 7 news item, 'Cameras roll, 15 months late'
24/12/04 page 7 news item by Andrea Petrie and Darren Gray, 'Police drug tests changed as two cleared'
24/12/04 page 18 letter from Lawry Mahon, 'Give it a go'
24/12/04 page 18 letter from Kieran Power, 'Unreliable test'
The Australian
23/12/04 page 5 news item, '"Positive" start to drug-drive blitz fails lab test'
The Herald Sun
15/12/04 page 2 news item by Norrie Ross, 'Driver fights drug finding'
15/12/04 page 18 letter from Mary Romayne, 'Drug tests a revenue raiser'
16/12/04 page 22 editorial, 'Drug-test questions'
23/12/04 page 1 news item by Norrie Ross et al, 'Drug test driver clear'
23/12/04 page 18 editorial, 'Whiff of failure'
23/12/04 page 20 letter from C Morrison, 'Drug test at chemists'
24/12/04 page 11 news item by Ben Packham and Norrie Ross, 'Drug tests shake-up'
26/12/04 page 15 news item by Carly Crawford, 'Tablets may lead to drug test grief'
26/12/04 page 94 editorial, 'Apologise, and quickly'