Roadside drug testing would be enabled by the legislation. Photo / Dean Purcell.
The mother of a man killed by a drugged driver is pleading with MPs to support legislation to enable roadside drug testing, saying it would be “morally reprehensible” not to address the issue.
But other submitters at a select committee on Monday have questioned whether the oral fluid technology proposed to be used for testing is an accurate and fair way of determining whether someone shouldn’t be behind the wheel.
The previous Government introduced legislation allowing for a random roadside drug testing regime, but no oral fluid testing devices were found that met the specified evidentiary standards.
That’s led the coalition Government to propose a bill with a different standard, allowing for testing devices even if they produce a low proportion of false positives or negatives. Someone who returned two positive tests would be prohibited from driving for 12 hours.
One of the chief complaints of submitters on the legislation was that the technology only indicated the presence of drugs, not that the individual was impaired, and this could negatively impact people, including those who were using some prescription medicine.
“There is a problem in terms of the science here. Unlike with alcohol, the presence of a substance in a sample does not equal impairment,” said Sarah Helm, the executive director of the NZ Drug Foundation.
“We would love to have a method that’s as accurate as breathalysing for detecting impairment, but unfortunately the science isn’t there.”
Helm said 19 of the 25 substances listed in legislation were found in therapeutic medicines and there could be “perverse outcomes” if someone taking these substances doing their “damndest” not to hurt anyone or drive impaired was penalised.
However, Karen Dow, the mother of Matthew Dow who was killed on New Year’s Eve 2017 near Nelson by a driver who had been drinking and used methamphetamine and cannabis, said a line needs to be drawn in the sand.
“I think arguing the degree of impairment is like arguing the length of a piece of string, there’s never going to be an end to it,” she said.
‘But I think morally any government has responsibility when there is a known cause for one-third of all road deaths being caused by a factor that we have the tools and we have the manpower to be able to reduce this factor significantly.”
The select committee heard that on average about 105 people were killed each year in crashes after drivers had consumed impairing drugs – about 30% of all road deaths.
Dow said it would be “morally reprehensible” not to act to address this. She presented a petition to Smith when he was an MP in 2019 calling for roadside drug testing.
Sally King, from the New Zealand Medicinal Cannabis Council, said the 12-hour standdown from driving was a “significant penalty” without proving someone’s driving was impaired.
“If you are impaired, it is entirely justified, but it’s an inexcusable intrusion on your day if you’re not.”
A medical defence is found in the legislation, available to drivers who can establish they have taken prescription medicine in accordance with its requirements.
But Bronagh McKenna, from the NZ Law Society, said that would need to be raised at court proceedings, putting cost on the defendant.
A number of alternative pathways were proposed by submitters, such as allowing those using prescribed medicine to show officers evidence of their prescriptions.
Both Helm and King suggested variations of a pathway where an impairment test would be carried out if someone failed the oral fluid test. Recognising concerns that impairment tests can be intensive, they suggested a shorter version.
Helm said an impairment test would also avoid an officer having to make “just a visual decision” as to whether someone was impaired.
C K Rahi, from Advance Diagnostics NZ, which provides drug testing equipment to workplaces, said thresholds should be increased.
“If you increase that cut-off, you’re looking at higher concentration of drugs in a person, in a person driving, and... the consequences of that is we are not accusing, penalising people who have low levels or which is not actually causing impairment on the road.”
Another issue raised, including by the NZ Law Society, is that the Attorney-General has found elements of the legislation to be inconsistent with the Bill of Rights, including the right to be secure against unreasonable search and seizure, not to be arbitrarily detained, and the right to be presumed innocent until proven guilty.
McKenna said allowing officers to collect oral fluid samples with any suspicion of drug impairment was a “significant intrusion on bodily privacy”.
Asked what the difference was between alcohol and drug testing from a human rights perspective, McKenna said with alcohol testing, the breath test can take just a number of seconds, but the Attorney-General had stated that the drug testing process could take up to 30 to 40 minutes.
Her colleague Chris Macklin said there was a big difference between the two.
“There’s a very strong correlation between breath and blood alcohol and impaired ability to perform properly as a driver,” he said. “There’s not such a correlation between the saliva tests and impairment, and that’s really at the heart of the enforcement side of it.”
He said the drug test was not “an effective screening tool in the same way that you deal with alcohol”.
Dylan Thomsen, from the AA, said the organisation recognised the “much greater complexity there is in dealing with drugs than alcohol”.
“But we see the proposed approach as striking an effective balance to allow meaningful enforcement action while also having safeguards in place to protect individuals’ rights and freedoms.”
Nick Smith, the former National Party minister and current Nelson Mayor, submitted alongside Dow and said many of the arguments made on Monday were the same as when random alcohol testing was introduced.
“I believe this road safety measure has exactly the same potential, effectively, to halve the road fatalities from drug-impaired driving in New Zealand.”
He said the Bill of Rights legal arguments were “wrong then and it’s wrong now”.
“The imposition on me when I drive down the road, as I did a fortnight ago, pulled over for two minutes to have a brief test, in my view was a very small inconvenience that I’m happy to have knowing that there are not going to be drunk drivers on the road.”
Other submitters included the Police Association, which wanted greater powers of detainment and believed the penalty associated with the legislation didn’t align with drink driving.
Transport Minister Simeon Brown said when he introduced the legislation that oral fluid testing was common overseas.
“Finding more effective ways to target drugged drivers underlines this Government’s commitment to road safety.
“Our Government Policy Statement on land transport 2024 outlines our expectation that Police undertake 50,000 oral fluid tests per year once the roadside drug testing regime is rolled out.
“Our approach takes a much harder line on the causes of death and serious injury on our roads. We will do this by ensuring that motorists are safer and that people impaired by drugs think twice before getting behind the wheel.”
The Transport and Infrastructure Select Committee is considering the legislation. It was supported at first reading by National, Labour, Act, and New Zealand First. The Green Party, Te Pāti Māori and Darleen Tana opposed.
Jamie Ensor is a political reporter in the NZ Herald Press Gallery team based at Parliament. He was previously a TV reporter and digital producer in the Newshub Press Gallery office.
Luxon has now headed onward to Europe.