The impact misery for all involved
As a lawyer dealing with drugged driving (both as Prosecution and Defence) the fall-out can be far reaching. It is a complex issue. Two of the worst cases I have had involvement in as a Prosecutor were both on SH29 near Maungatapu. The first, a fatal crash on the Maungatapu bridge killing a young man and injuring another. A Police officer had to risk his life to dive into the harbour to save the injured person. The deceased victim went to work that day and never returned. He left a young wife and children, one of whom was born 6 months later. In that particular case due to a ‘loop hole’ in the law the Police were not able to charge the driver with drugged driving causing death (and injury to another person) because Cannabis is not listed on the qualifying schedule as it must be a Class A drug to qualify for that offence. The second matter was a tragic death of two persons killed by a drugged driver and seriously injuring another whilst that were changing a tyre on the side of the road on July 2016. The offender in that case was also charged with and convicted of theft of medicines.
Complexity of drugged driver Issues
The offenders in both of the cases above had complex issues. Even international experts such as Dr Helen Poulsen from the ESR has said “We are all grappling with the best response strategies and how to get more information on which to base these responses” [source ESR NZ Drug foundation symposium] She also acknowledged in many countries, including New Zealand, drugged driving is dealt with as a road safety issue and comprises two main offender groups – those recreational users that then choose to drive, and heavy users and those on prescription medication who will always drive. Much of the response to drugged driving is based on methodologies employed to tackle drink driving. Dr Poulsen says the issue of drugged driving has many different components; “Drink driving related deaths tend to occur at night, on or near the weekend, and with young male victims in single vehicle crashes but drugged driving related deaths occur at any time on any day with a higher proportion of female victims and multiple vehicles…“The type of drug or drugs found also varies from region to region. Although cannabis and methamphetamine are still very dominant, prescribed medical drugs are also a recognised issue, particularly when taken with alcohol.”
Legal Issues around collection of evidence
If the causes and types of offending are not difficult enough to grapple with, I have come across some interesting ancillary legal issues. One case I have involvement in is where the alleged offending driver makes an admission of drug use to Ambulance staff as part of their clinical assessment where the driver is also a patient. Subsequently that information is passed onto Police who carry out drug testing. There are exceptions to the Privacy Act and Health and Disability Code which arguably say that is lawful and each case is fact dependant. That matter is currently before the High Court but I will monitor and advise of that outcome in due course.
As a Lawyer now dealing with these types of cases, it seems obvious that the underlying causes of offending need to be grappled with and the testing needs to be reliable and lawful. The roadside “CIT” (Compulsory Impairment test, sometimes referred to as the ‘walk and turn test’) is very subjective and is a cumulative assessment under the Land Transport (Compulsory Impairment Test) Notice 2009. It comes down to what the Police officer thinks (unless you have a lawyer with specialist knowledge to assist you in challenging that).
Saliva-based testing kits are more reliable and are successfully used overseas. They detect common illicit drugs including cannabis, methamphetamine, and ecstasy and have a greater degree of certainty and justification to proceed to the blood test (note in cases where the offending driver is not injured and taken to hospital and in which case required to provide ‘hospital blood’).
The Drug Foundation on the other hand questions the validity of the ‘saliva tests’ and does not believe the technology is currently at a standard for it to be introduced in New Zealand; “It doesn’t test for the full range of drugs, including prescription medications that it needs to. It doesn’t test for impairment and in the case of cannabis, overseas studies have shown that it misses about half of the cases… it should not be relied on as solid evidence for police enforcement,” executive director Ross Bell has said.
There is no doubt about it, the CIT process is the cheaper option but the Officer must form the ‘good cause to suspect’ under s71A of Land Transport Act.
Attitudes toward drink driving slowly being applied to Drugged driving
It seems the attitudes of New Zealanders have changed a lot. In the 70/80s it seemed to be seen as ‘the offence is getting caught’ and it was the domain of ‘Traffic cops’ and the Police were not interested as there was a clear demarcation line. In recent times Kiwi thinking has moved to the distain of drink driving but have not quite got our ‘heads around’ the fact that drugged driving deaths actually out number drink driving deaths.
According to figures obtained by the Automobile Association, in 2017, 79 fatal crashes involved a driver with drugs in their system, compared with 70 involving an intoxicated driver.
In 2016, 59 fatal crashes involved a drugged driver and 67 involved alcohol. “The AA has called drugged driving a silent killer on our roads for years and these latest figures confirm how prevalent drugs are in fatal crashes,” Dylan Thomsen, AA road safety spokesperson, said; “No one wants someone who is high driving towards their family at 100km/h but right now the chances of being caught drugged driving is tiny. We have to change that.”
The association is repeating its call for the introduction of random roadside drugs testing. If this was to be introduced the numbers caught will ‘sky rocket’.
Excluding alcohol, the two most commonly detected individual drugs were cannabis and P. The cases of P being detected had shot up in recent years, and a range of other drugs and medications that impair driving also feature in the results, the AA said.
This is a linked issue to the causes of offending. I think that empirical evidence about long term (or short, but regular term use effecting a young developing teen) has a profound effect on a person’s cognitive ability and connection to reality. Often it is justified as a coping mechanism. This is a complex issue best left for Psychiatrists but I will blog about that at some point in the future.
Some Facts about the dangers of “Drugged Driving”
— Source courtesy of the website: getsmartaboutdrugs.gov
What is drug-impaired driving?
Driving under the influence of over-the-counter medications, prescription drugs, marijuana, or illegal drugs.
Why is drug-impaired driving dangerous?
Over-the-counter (OTC) medications and drugs affect the brain and can alter perception, mental processes, attention, balance, coordination, reaction time and other abilities required for safe driving. Even small amounts of some drugs can have a serious effect on driving ability.
A recent national survey showed 22.5% of night-time weekend drivers tested positive for illegal, prescription, or OTC drugs that can impair driving. (Drug-Impaired Driving: A Guide for States, April 2017. NHTSA 2014 Drug-Impaired Driving Survey)
What substances are used the most when driving?
After alcohol, marijuana is the most commonly used drug. (Source: National Institute of Drug Abuse)
What happens when you use drugs and drive?
Marijuana can decrease a person’s ability to drive a car. It slows reaction time, impairs a driver’s concentration and attention, and reduces hand-eye coordination. It is dangerous to drive after mixing alcohol and marijuana. Driving after using prescription drugs or over-the-counter medicine, such as cough suppressants, antihistamines, sleeping aids, and anti-anxiety medications may impair driving ability.
How many teens are smoking marijuana and driving?
More than one in eight high school seniors admitted in a national survey to driving under the influence of marijuana in the two weeks prior to the survey (National Institute of Drug Abuse, 2012 Monitoring the Future Survey. )
Is it legal?
Even in states that have legalised marijuana for recreational use, driving while under the influence of marijuana is still illegal. Unfortunately, too many people are misinformed. A study conducted by Liberty Mutual Insurance and Students Against Destructive Decisions (SADD) found that a third of all teens believe it is legal to drive under the influence of marijuana. In addition, 27 percent of parents believed it was legal.
Not only is driving while high illegal, it’s also very dangerous. According to the National Institute on Drug Abuse, the effects of marijuana can include: altered senses and sense of time, slow reaction time, anxiety, hallucinations and more.
TIP: Parents—tell your teen not to drive after using marijuana or other drugs, and don’t get in a car with a driver who has used marijuana or other drugs!
FACT: More teens are driving after smoking marijuana than after heavy drinking.
A national study showed that from 2009-2011, the percentage of high school seniors who drove after using marijuana was almost three times as high as those who drove after drinking heavily. (American Journal of Public Health 103:2027-2034)
Remember: Marijuana and many medications act on parts of the brain that can impair driving ability. Many prescription drugs have warning labels against the operation of machinery and driving motor vehicles, for a certain period of time after use. You are more likely to be injured or in an accident while driving while under the influence of marijuana or prescription drugs.
David Pawson is a lawyer who has seen both sides and appreciates the issues. If you have a found yourself in difficulty and need representation please go to the ‘contact us’ if you need help or advice.
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