Drink Driving and Drug Driving by Rowena Johns
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Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 15/2004 by Talina Drabsch
|This briefing paper examines current laws, recent developments, and planned reforms in New South Wales relating to driving a motor vehicle after consuming alcohol or drugs. Reference is also made to some developments in interstate jurisdictions.
Drink driving in NSW (pages 2-9)|
Statistics are presented to show rates of alcohol-related road accidents in recent years. Preliminary concepts that are important for an understanding of drink driving laws are explained, such as categories of drivers; blood alcohol ranges from novice range to high range; and the power of police to randomly breath test drivers for alcohol. Key offences are outlined, including driving under the influence of alcohol and driving with the prescribed concentration of alcohol (PCA) under the Road Transport (Safety and Traffic Management) Act 1999.
Sentencing of drink driving offenders in NSW (pages 10-19)
Recent sentencing studies have highlighted the disparity between sentences imposed by different courts for drink driving offences. There has also been frequent use among sentencing judges of the power to find an offender guilty without proceeding to a conviction. Imprisonment rates, even for drivers in the high range of blood alcohol content, have been very low unless the offender has two or more prior PCA convictions. In addressing some of these issues, the Court of Criminal Appeal delivered a guideline judgment in September 2004 on high range PCA offences. Educational programs for convicted drink drivers also feature in this chapter, particularly the Sober Driver program which commenced in July 2003 and targets recidivist offenders.
Alcohol interlocks (pages 20-32)
An alcohol interlock is an electronic breath-testing device that is connected to the ignition of a motor vehicle and prevents it being started if the driver fails to provide a suitable breath sample. The Road Transport Legislation Amendment (Interlock Devices) Act 2002, which commenced in September 2003, made interlocks available to New South Wales courts as a sentencing component. Eligible drink driving offenders can reduce their period of licence disqualification if they participate in the program. The alcohol interlock schemes of South Australia (the first in Australia) and Victoria are also described.
Drug driving (pages 33-56)
Current drug driving offences and detection in NSW: Driving under the influence of a drug is an offence against the Road Transport (Safety and Traffic Management) Act 1999, while the indictable offence of dangerous driving occasioning death or grievous bodily harm, under the Crimes Act 1900, can apply if the driver is under the influence of a drug. Statutory powers to obtain blood or urine samples from drivers for drug testing currently require a police officer to form the reasonable belief that the person is under the influence of drugs, or the person to attend hospital after a road accident.
Extent of drug driving in the community: Research studies and occupational evidence suggest that drug driving is more likely to be committed by certain groups within the population, such as regular users of illicit drugs, dance party attendees, and long-distance truck drivers.
Drug testing methods and challenges: Drug use by drivers may be identified by saliva, sweat, urine, blood or behavioural tests. Saliva testing is the favoured method of preliminary screening in Victoria and those other States that are planning to conduct roadside drug testing. Some of the challenges and choices involved in implementing a driver testing program are the accuracy, convenience and cost of the tests, and whether an offence is constituted by the presence of any concentration of drug in the driver’s system, or whether evidence of driving impairment is required.
Drug driving proposals in NSW: In November 2004 the Minister for Roads, Hon Carl Scully MP, announced that legislation will be introduced in 2005 to empower police to conduct random drug testing of drivers, using saliva tests to detect cannabis, ecstasy and speed. Testing will operate on a 12 month trial basis and concentrate on the functioning of the technology and police operations, rather than prosecuting drivers caught during that time. The Government also plans to introduce legislation in 2005 to authorise blood testing of all drivers involved in fatal road accidents.
Interstate developments: All jurisdictions in Australia have laws that prohibit drug driving, but Victoria was the first State to introduce random drug testing legislation and to conduct trials of testing devices. The Road Safety (Drug Driving) Act 2003 (Vic) commenced on 1 December 2004, making it an offence to drive a motor vehicle with any concentration of cannabis or methylamphetamine in the blood or oral fluid. Police began random roadside operations in Melbourne on 13 December 2004, employing a ‘Drugwipe’ device to obtain a saliva sample. Positive results must recur in two tests on site and a third laboratory test before an infringement notice is issued. The South Australian and Tasmanian Governments have also announced plans to introduce random drug testing legislation in 2005.