Submission on the Land Transport (Drug Driving) Bill

Presented to the Transport and Infrastructure Committee, April 2021

This submission is from the National Organisation for the Reform of Marijuana Laws, New Zealand Inc (1980). We would like to speak about this submission if there is an opportunity.

Recommendations/Summary

NORML supports the intention to make driving safer and to remove impaired drivers from our roads.

We generally support the Bill, however we have several concerns and recommend ways to improve it.

Randomly stopping, detaining and searching drivers are potentially breaches of s21, s22 and s25(c) of the Bill of Rights Act 1990, which affirms the right to be free from arbitrary detention, unreasonable search and seizure, and to be presumed innocent until proven guilty. This must be strongly justified.

We support treating cannabis consistently with alcohol, so we support the provisions in the Bill to have the testing methods calibrated to an equivalent level of impairment as the current legal alcohol limit.

We support the consistency with alcohol in treating a positive result as an infringement, and a criminal offence at higher levels. There should be no penalty for the presence of drugs under the threshold.

We remain concerned about the reliability, intrusiveness, accuracy, and scope of oral swabs; if these are to be given, we support the proposal to only record a “Fail” result upon two positive oral swabs, as this may mitigate to some degree their inherent unreliability.

We support the use of Compulsory Impairment Tests, however we are concerned about the potential for biased enforcement and recommend body or dash cams be made mandatory, so any test is recorded and can be replayed, and we further support the proposal for CITs to not be used evidentially.

We support the proposal to only use blood tests for evidential purposes, and strongly support the provisions in the Bill that state this will be calibrated to reflect the same level of impairment as the legal level for alcohol. We note research which suggests this should be in the range of 7-10ng/ml THC.

We recommend testing only for active ingredients like THC, not inactive metabolites such as THC-COOH.

We support making a legal defence available to patients using cannabis products medicinally and acting under the directions of their physician, consistent with the approach taken for other legal medicines.

We also recommend adding a legal defence for heavy users with tolerance to higher levels of residual cannabinoids (such as that used in the US state of Colorado).

We recommend ensuring an officer cannot require a driver to undergo a CIT if the driver has passed the oral tests.

Similarly, we recommend officers should not be able to select the testing “pathway”, given these carry different penalties.

We also recommend adding a provision to ensure positive results cannot be used to initiate searches.

Commentary

About Us

NORML New Zealand is a non-profit membership-based society, incorporated in 1980. Our mission is to move public opinion sufficiently to legalise the responsible use of cannabis by adults, and to serve as an advocate for consumer safety.

NORML’s Principles of Responsible Cannabis Use includes not driving while impaired:
“The responsible cannabis consumer does not operate a motor vehicle or other dangerous machinery impaired by cannabis, nor (like other responsible citizens) impaired by any other substance or condition, including some medicines and fatigue. Although cannabis is said by many experts to be safer than alcohol and many prescription drugs with motorists, responsible cannabis consumers never operate motor vehicles in an impaired condition. Public safety demands not only that impaired drivers be taken off the road, but that objective measures of impairment be developed and used, rather than chemical testing.”

Objectives and consistency with drink-driving

The Land Transport (Drug Driving) Amendment Bill establishes a new random oral fluid testing regime for drivers, sitting alongside the current Compulsory Impairment Test (CIT) approach to drug driving. A police officer would be able to randomly stop anyone driving and administer an oral fluid (saliva) test. Drivers who fail 2 consecutive oral fluid tests would incur an infringement penalty, which is said to be aligned to the drink driving infringement penalty. Cut-off thresholds would be set in the oral fluid devices for the detection of drugs, although these are not specified in the Bill.

NORML generally supports the Bill (we called the first version of the Bill “pretty good”). We support regulating cannabis consistently with alcohol. We support the intention to make driving safer and to remove impaired drivers from our roads.

The challenge is to accurately deter and detect impaired drivers, while not erroneously capturing non-impaired drivers. Many New Zealanders use cannabis regularly or on occasion. Some have legal access to medicinal cannabis products. Cannabis metabolites can linger in the body for weeks after consumption, but any impairment probably lasts just a few hours.

Some data compares any detectable presence of illicit drugs but includes alcohol only if over the legal limit. Indeed, the Explanatory Note of this Bill cites 95 deaths in 2018 where the “the driver had consumed drugs other than alcohol before driving”. But these are drivers showing any trace or residual amount – not impairment. A more valid comparison with drunk drivers would be illicit drugs over the level to be adopted in new Schedule 5.

We strongly support that the oral swabs, Compulsory Impairment Test and evidential blood test will all be calibrated to an equivalent level of impairment as the current legal alcohol limit for driving (80mg/100ml).

Penalties for impaired driving due to drugs should be consistent with the penalties for impairment due to alcohol. The proposed “infringement offence” includes the potential for imprisonment and fines based on the detection of any amount. This is not consistent with alcohol.

Bill of Rights

The Bill outlines a process where any driver going about their business may be stopped, without reason, and subjected to a search of their oral fluids, and/or made to perform various physical activities, and/or compelled to give a sample of their blood for evidential purposes. These breach the principles of natural justice and s21, s22 and s25(c) of the Bill of Rights Act 1990, which affirms the right to be free from arbitrary detention, unreasonable search and seizure, and to be presumed innocent until proven guilty.

Any such breaches of the fundamental rights of citizens must be justified, and while this has arguably been demonstrated in the case of alcohol checkpoints, the evidence is far less clear for cannabis.

We recognise the Bill attempts several balancing acts and places some important limits on what the police can do. We agree that an officer cannot require a driver to undergo a CIT if the driver has returned a first positive oral fluid test or 2 consecutive positive oral fluid tests for a single drug.

We are concerned, however, that a driver who passes the oral swabs should be “free to go” but the Bill allows an officer to make them perform a CIT anyway.

a. We recommend an officer cannot require a driver to undergo a CIT if the driver has returned a first negative oral fluid test or 2 consecutive negative oral fluid tests for a single drug. Individual officers could simply not like someone and, although they pass the oral swab, the officer could make them perform a CIT and fail them based on their opinion.
b. Similarly, we recommend officers should not be able to select the testing “pathway”, given these carry different penalties. Officers could not like someone and choose to not offer the oral fluid test pathway.
c. Such biases are more likely to impact Maori and young males.

We support the provision that makes clear a positive result cannot be used evidentially for an additional charge of possession or use (s73A). However, we remain concerned a positive result (of any test) could be used by officers to conduct searches of persons or vehicles. Such a search would be a “fishing trip”, as confirmation of impairment is not evidence of possession at the time.

a. We recommend strengthening s73 by adding a provision to ensure positive results cannot be used to initiate searches (this would not any bar other grounds for searches).

Oral swabs

This Bill will allow a police officer to stop any driver of a motor vehicle and administer an oral fluid test without cause to suspect they have consumed any drugs. The Bill says drivers who fail 2 consecutive oral fluid tests would incur an infringement penalty, aligned to the drink driving infringement penalty. We agree this is broadly consistent with the existing approach to drink driving enforcement.

We have previously expressed concerns about the reliability of oral swabs:
a. Current devices show a high number of false positives and false negatives.
b. Each oral swab will cost several times what it costs to perform an alcohol breath test.
c. They could be a significant inconvenience to drivers and impractical for law enforcement if any proposed tests take any longer than a moment to complete.
d. Expecting police officers to handle bodily fluids is very invasive and subject to cross contamination with risk of spreading bacteria or viruses (including COVID-19) if the hygiene controls are not ‘up to scratch’.
e. Many people may feel uncomfortable having non-medical personnel taking mouth swabs on the roadside, especially during the current pandemic.
f. Additionally, currently available oral swabs do not detect drugs highly indicated in impairment such as synthetic cannabinoids. They may therefore encourage the use in synthetics or other drugs that cannot be detected or are flushed more quickly – yet may be riskier.

Oral swabs typically record a positive result for cannabis for around 4 to 24 hours after last use. We strongly support mandating that oral devices for roadside impairment testing will be calibrated to the same level of impairment as New Zealand’s legal alcohol-driving limit – as proposed in the Bill. Any impairment from cannabis is unlikely to be longer than 4 hours.

Assuming an appropriate device is identified, and oral swabs are used, we support the proposal to only record a “Fail” result upon two positive oral swabs, as this may mitigate to some degree their inherent unreliability.

Compulsory Impairment Tests

NORML supports enhanced use of the current Compulsory Impairment Test (CIT). This includes an eye assessment, a walk and turn, and a one leg stand assessment. When properly administered it can be a more accurate predictor of impairment, from any cause (drugs, alcohol, fatigue, medicines etc).

The Bill allows an officer to require a driver to perform a CIT if the officer has good cause to suspect a driver has consumed drugs, or if a driver has failed first oral fluid test for more than 1 drug. A driver who fails a CIT would be required to take an evidential blood test and would be subject to both infringement and criminal penalties, depending on the levels of drugs in their blood sample.

We remain concerned at the potential for biased enforcement and agree CITs must not be used evidentially. Due to the subjective nature of the test, an officer could fail people they do not like. The impact of inherent bias on an observational test must be considered – for example, it is likely there will be an overall negative bias towards Maori and young males.

We recommend more training and oversight for officers, and that body or dash cams be made mandatory during testing so that any test is recorded and can be made available for any court proceedings. An impartial visual recording of any impairment would alleviate some of the concerns around biased enforcement.
a. These recordings should be reviewed regularly by a third-party to monitor the fairness of the test and the ability of officers to administer it;
b. This could be done by the panel of experts proposed in s167.

We recommend considering new non-invasive technology-based solutions to better measure impairment, such as with a handheld device fitted with sensors and connectivity or an app that can be used on any smart phone – by law enforcement or by drivers to self-test before they drive. For examples see the DRUID or My Canary apps developed to assess a user’s level of impairment due to any cause.

We also lament additional funding for training, dash cams and developing new technology could have come from levies on the sale of legal cannabis products for adult use. We recommend funding should be made available to support the development or adoption of dash cams and new technology such as DRUID.

Blood tests

Driver blood tests should not be based simply on any presence of drugs:
a. The mere presence of cannabinoids or metabolites in bodily fluids (including blood and saliva) are unreliable indicators of driving impairment;
b. Impairment from cannabis is unlikely to occur at low levels; and
c. Cannabis can be legally consumed (for medicinal purposes, in accordance with the prescriber’s instructions).

We would generally support an approach that does not rely solely on a detectable presence of THC or its metabolites in blood as determinants of guilt in a court of law, but will be calibrated to an equivalent level of impairment as the legal drink driving limit, and has followed a failed oral fluid test or a failed Compulsory Impairment Test.

This evidential blood test level is not currently be in the Bill. It is proposed to be added to Schedule 5 either by SOP or Order in Council as required, after guidance from a panel of experts (s167). Care must be taken to determine any appropriate cut off levels. Setting a level that is too low, or ‘zero tolerance’ of any level of drugs, would capture non-impaired drivers and defeat the purpose of the legislation.

Crucially, driver impairment testing should only be for active ingredients like THC, not inactive metabolites such as THC-COOH (which can be detected in urine up to four months after cessation).

We agree that the blood test must follow a failed oral test or failed CIT and cannot be used alone. Several recent studies have reported that the presence of THC alone is an unreliable predictor of either recent cannabis exposure or impairment of driving performance.
a. A recent Australian study assessed the relationship between THC levels and driving performance in 14 volunteers. Participants vaporized cannabis samples of varying potencies (high THC/low CBD, balanced THC and CBD, and no THC/placebo). Volunteers performed on a driving simulator. Nearly half of the study’s participants failed to show driving impairment 30 minutes following cannabis inhalation, despite possessing THC levels above commonly imposed per se limits (e.g., 5ng/ml in blood or oral fluid). Conversely, several participants did show impairment 3.5 hours following vaporization, when their THC levels were below per se limits.
b. German researchers found “no correlation” between THC levels in blood and psychomotor impairment, and instead found the point in time after cannabis consumption to be a much stronger predictor of impairment.
c. In contrast, researchers from the University of British Columbia found the detection of THC in blood at levels greater than 2ng/ml may persist for extended periods of time, and therefore it is not necessarily indicative of recent cannabis exposure.
d. Another Canadian study, published in Addiction, found the presence of THC in blood was not associated with crash culpability. Researchers found “no increase in crash risk, after adjustment for age, sex, and use of other impairing substances, in drivers with THC<5ng/ml. For drivers with THC>5ngml there may be an increased risk of crash responsibility, but this result was statistically non-significant and further study is required. … Our findings … suggest that the impact of cannabis on road safety is relatively small at present time.” By contrast, authors reported, “There was a significantly increased risk for drivers who used alcohol, sedating medications, or recreational drugs others than cannabis.”
e. A 2019 report from the US Congressional Research Service similarly concluded the presence of THC in blood is not a consistent predictor of either driver performance or impairment, and noted the National Highway Traffic Safety Administration has observed that using a measure of THC as evidence of a driver’s impairment is not supported by scientific evidence to date.

Given this evidence, and the presumption of guilt inherent in setting any level, great care should be taken to not use a blood test alone, and to not set any blood level too low.

We recommend consideration of a 2007 international working group of experts on issues related to drug use and traffic safety, who evaluated evidence from experimental and epidemiological research and discussed potential approaches to developing per se limits for cannabis. They noted:
a. “A comparison of meta-analyses of experimental studies on the impairment of driving-relevant skills by alcohol or cannabis suggests that a THC concentration in the serum of 7-10 ng/ml is correlated with an impairment comparable to that caused by a blood alcohol concentration (BAC) of 0.05%. Thus, a suitable numerical limit for THC in serum may fall in that range.”

We note this range may be comparable to a BAC or 0.05% however New Zealand’s legal BAC limit is 0.08% for drivers aged over 20, and 0.03% for drivers aged under 20.

Additionally, we recommend adding a legal defence for heavy users with tolerance to higher levels of residual cannabinoids (such as that used in the US state of Colorado).

The accused must be able to have their blood sample tested by an independent analyst – which is the case for drink driving.

Penalties and search powers

The Bill proposes to establish both infringement and criminal offences, depending on the testing process and the quantity of drugs found in a driver’s system.

Penalties for impaired driving due to drugs should be consistent with the penalties for impairment due to alcohol. However, the proposed “infringement offence” includes the potential for imprisonment and fines based on the detection of any amount. This is not consistent with alcohol.

New section 57A(1) creates an offense of driving or attempting to drive with blood containing evidence of the use of a qualifying drug listed in new Schedule 5 if it exceeds the threshold specified for the drug in new Schedule 5. This threshold will be calibrated to an equivalent level of impairment as the legal drink driving limit. That is fair and reasonable.

However new sections 57A(2) and (3) extends this, to create an infringement notice for the presence of any drug listed in new Schedule 5 found in blood or oral fluid. That seems capricious, malicious, and against the intention of the legislation to promote road safety – not to just be another criminal law enforcement tool used by police to harass people. For consistency and equivalence with alcohol, there should be no penalty for the presence of drugs under the threshold to be specified in new Schedule 5.

We are extremely concerned that the Bill appears to treat drivers differently, depending on whether they accept the oral swab result, or ask to have a blood test or are requested to perform a Compulsory Impairment Test. The former results in an infringement while the latter results in a criminal record. It does not feel right to have a more severe penalty – with potentially lifelong effects – because of selecting one testing method or the other.

Consideration should be given to the ability of a member of the public to ‘choose’ a test when they may have limited understanding of the consequence of that test, and people may also feel uncomfortable (for a variety of reasons, including COVID-19) with having non-medical personnel swab their mouth.

We support the proposed s73A which prohibits the use of test results from being used to prosecute charges of possession or use of drugs. However there appears nothing preventing officers from using positive test results to initiate searches of drivers, their passengers, or their vehicles. Such searches would be little more than “fishing trips” and are likely to be used more frequently against Maori and young males. We recommend strengthening s73A by adding a provision to ensure positive results cannot be used to initiate searches. We note this would not bar any other grounds for searches.

We support making a legal defence available to patients using cannabis products medicinally and acting under the directions of their physician, consistent with the approach taken for other legal medicines. (such advice is likely to include “do not drive for X hours”). According to the Ministry of Health around 200,000 New Zealanders use cannabis for therapeutic purposes, and around 3000 have obtained prescriptions to do so legally. Many others are using illicit cannabis under the direction of their doctors.

Driver education

Recent research from the Lambert Initiative in Australia suggests the actual impact on driving ability varies considerably between individuals and may relate not only to dosage and time interval, but also their experience both with cannabis and with driving. Novices in either tend to fare worse, but for most people impairment typically lasts from 2 to 4 hours. They note this is a simple education message to get across to drivers: don’t drive for 4 hours after use.

We would strongly support an education campaign that included such messages. We have been told by many cannabis consumers – members, supporters, and the public when we are out campaigning – that the current NZTA campaign lacks credibility.

We support the proposed harm minimisation approach which involves referrals for assessment to drug education or rehabilitation programmes for repeat offences. Education works better than blunt sticks.

We have attached as an appendix our submission to NZTA’s discussion document on enhanced drug impaired driver testing (dated 28 June 2019), which we hope will be useful to the committee.

Thank you for considering this submission and giving us the opportunity to present our views.

Yours faithfully,
Chris Fowlie
President, NORML New Zealand Inc


Footnotes:

1 https://norml.org.nz/about/responsible-use/
2 https://norml.org.nz/govt-roadside-drug-testing-shock-the-proposed-rules-are-actually-pretty-good%ef%bb%bf/
3 https://norml.org.nz/normls-submission-to-nzta-on-drug-impaired-driver-testing/
4 Arkell et al, Detection of Δ9 THC in oral fluid following vaporized cannabis with varied cannabidiol (CBD) content: An evaluation of two point‐of‐collection testing devices. Drug Testing and Analysis, 11.10 October 2019. https://doi.org/10.1002/dta.2687 See also https://www.sydney.edu.au/news-opinion/news/2019/09/12/study-casts-doubt-on-accuracy-of-mobile-drug-testing-devices-.html
5 DRUID app https://impairmentscience.com/
6 Canary app https://www.youtube.com/watch?v=SmdyPemrqw4
7 Arkell et al. The failings of per se limits to detect cannabis-induced driving impairment: Results from a simulated driving study. Traffic Injury Prevention, Feb 2021. 22:2, 102-107 https://doi.org/10.1080/15389588.2020.1851685
8 Tank A et al. On the impact of cannabis consumption on traffic safety: a driving simulator study with habitual cannabis consumers. Int J Legal Med. 2019 Sep;133(5):1411-1420. https://pubmed.ncbi.nlm.nih.gov/30701315/;
9 Peng YW, et al. Residual blood THC levels in frequent cannabis users after over four hours of abstinence: A systematic review. Drug Alcohol Depend. 2020 Nov 1;216:108177. https://pubmed.ncbi.nlm.nih.gov/32841811/;
10 Brubacher JR, et al. Cannabis use as a risk factor for causing motor vehicle crashes: a prospective study. Addiction. 2019 Sep;114(9):1616-1626. https://pubmed.ncbi.nlm.nih.gov/31106494/
11 Peterman, DR. Marijuana Use and Highway Safety. Congressional Research Service, May 14 2019. https://crsreports.congress.gov/product/pdf/R/R45719
12 Grotenhermen, F. et al. Developing limits for driving under cannabis. Addiction. 2007 Dec;102(12):1910-7. Epub 2007 Oct 4. https://www.ncbi.nlm.nih.gov/pubmed/17916224
13 McCartney et al, Determining the magnitude and duration of acute Δ9-tetrahydrocannabinol (Δ9-THC)-induced driving and cognitive impairment: A systematic and meta-analytic review, Neuroscience & Biobehavioral Reviews, Volume 126, 2021, https://doi.org/10.1016/j.neubiorev.2021.01.003

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