Criminal Law News & Current Affairs
Why Canberra’s Draconian Drug Driving Laws Must Change
Adrian McKenna, Senior Associate at Ben Aulich & Associates, calls for reform to laws unfairly punishing drivers with cannabis in their system.
The Canberra community is increasingly learning the fallacy of the ACT Government’s “zero tolerance” approach, charging unimpaired drivers with miniscule traces of cannabis in their body.  It is less well known that we have by far the most draconian drug driving penalties in the country. A first offender with the smallest amount of cannabis in their system will ordinarily expect a criminal conviction and loss of licence of between 6 months and 3 years. Even for younger drivers injured in accidents, through no fault of their own, convictions and licence disqualification are common.
It is hard to deny the widespread use of cannabis in the ACT and elsewhere in Australia is very much a reality here to stay for the foreseeable future. Whether we respond with a “war on drugs” retribution mindsight or targeted tolerance and management is a wider reflection on our society.
For almost two decades the ACT has lead the way in progressive laws relating to what is a near decriminalisation of minor cannabis possession and cultivation. Possession of less than 50 grams of cannabis or cultivation of up to 2 cannabis plants carries a maximum penalty of $150 and can be dealt with by way of an infringement notice, akin to a speeding ticket, without going to court or having any criminal conviction recorded.
The laws appear to allow for tolerance, if not acceptance, of the reality and relative harmlessness of low level personal cannabis use in the community. There is also a growing push for the legalisation of marijuana for medicinal purposes.
Notwithstanding these progressive trends, the ACT Government repeatedly refuses to consider any amendments to drug driving laws that disregard levels of intoxication or impairment. It is a stubborn and hypocritical stance. We tolerate low level cannabis users on the one hand and on the other denounce them for driving days or weeks later, even if in no way still impaired by cannabis.
A quick comparison of automatic drug driving disqualifications in State and Territory jurisdictions shows the unusually harsh approach in the ACT:
Victoria: 3 months
SA: 3 months
WA: 3 demerit points
Tas: 4 demerit points
NT: 24 hour suspension
Qld: Between 1 and 9 months
NSW Between 3 and 6 months
ACT: Between 6 months and 3 years
Drug driving licence disqualification in the ACT matches that for high range (level 4) drink driving. Unlike drink driving charges though, drug driving offenders cannot rely on work licences or the installation of alcohol interlock devices to prevent licence disqualification. Young tradesman or apprentices, dependent on their licence for work, can expect to lose their job if caught driving even days after a casual use of cannabis. Police have been steadily increasing roadside drug tests in Canberra and this will inevitably capture more unimpaired drivers. 
Disappointingly, the stock standard response of the Government to calls for reform is that they take a “zero tolerance” approach to drug driving. No explanation is given for how it is just or morally acceptable to capture with a criminal offence so many perfectly capable and responsible drivers who are in no way impaired. Their advice is to simply not drive if you ever have drugs. The response may as well be “don’t do drugs”… “drugs are bad”. Is there any real difference between walking or sitting in public with a miniscule level of drugs without impairment than driving in the same state?
Some justification is attempted by claims (without any concrete evidence), that cannabis may only typically be detected in saliva for up to 12 hours and in blood for up to 48 hours. But these claims fly in the face of Court experience. Magistrate Heilpern in Lismore, for example, noted the hundreds of offenders who had spoken of trying to wait days or weeks for cannabis to clear their system before driving. I have personally represented many clients conveying this same experience.
Modern drug analysis techniques are perfectly capable of detecting concentrations of drugs in blood. Why this is not utilised, as it is in many European countries, for setting some limit to drug driving offences remains a mystery.
The ACT Government, whoever it will be by the end of this year’s election, must reconsider reforms that allow for testing of concentrations of cannabis, in a sensible way that reflects likely levels of impairment to driving. We also need a significant reduction to the automatic licence disqualification periods for the offence. It is outrageous that we are forced to tolerate these draconian laws that fly in the face of our otherwise progressive approach to low level cannabis possession and cultivation.
Adrian McKenna, Senior Associate
 Canberra Times Editorial, 29 June 2015, “ACT’s zero-tolerance drug driving laws may need review” http://www.canberratimes.com.au/comment/ct-editorial/acts-zerotolerance-drug-driving-laws-may-need-review-20150629-gi09q4.html
See, for example, Canberra Times, 1 July 2015 http://www.canberratimes.com.au/act-news/zero-tolerance-drug-drive-laws-leads-to-conviction-of-unimpaired-motorcyclist-20150630-gi1eyc.html
Canberra Times, 27 November 2015 http://www.canberratimes.com.au/act-news/drugdriving-campaign-launched-in-act-after-calls-for-greater-awareness-20151126-gl93e4.html
ABC News, 3 March 2016, http://www.abc.net.au/news/2016-03-03/claim-cannabis-stays-in-system-for-up-to-12-hours-questioned/7216720