In Victoria there is no fair distinction made between impairment and having detectable traces of a drug in ones system.
The following text is a series of out-takes from the (Vic) Road Safety Act 1986 and the (Vic) Road Safety (General) Regulations 2019 which describe the particular law around how an RDT operation is conducted, the responsibilities of the driver and the conditions which are required to determine whether or not the law has been broken, including the device in question, Securetec’s DrugWipe (pictured left).
The purposes of this Act are-
(a) to provide for safe, efficient and equitable road use; and
(ab) to set out the general obligations of road users in relation to responsible road use;
In Victoria, detection of a 'prescribed concentration' of a drug by the 'prescribed device' means you are guilty of an offence. Impairment is a separate charge. Find out more…
Part 5 Section 49
Offences involving alcohol or other drugs
- A person is guilty of an offence if he or she
- (a) drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle; or
- (b) drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath; or
- (ba) drives a motor vehicle or is in charge of a motor vehicle while impaired by a drug; or
- (bb) drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in his or her blood or oral fluid;
Prescribed concentration of drugs means, in the case of a prescribed illicit drug, any concentration of the drug present in the blood or oral fluid of that person;
What sort of punishment applies here?
Punishment
(3) A person who is guilty of an offence under paragraph (ba), (c), (ca), (d), (e) or (ea) of subsection (1), other than a supervising driver offence, is liable—
(a) in the case of a first offence, to a fine of not more than 12 penalty units; and
(b) in the case of a second offence, to a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months; and
(c) in the case of any other subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.
(3AAA) A person who is guilty of an offence under paragraph (bb), (eb), (h) or (i) of subsection (1), other than a supervising driver offence, is liable—
(a) in the case of a first offence, to a fine of not more than 12 penalty units; and
(b) in the case of a second offence, to a fine of not more than 60 penalty units; and
(c) in the case of any other subsequent offence, to a fine of not more than 120 penalty units.
(5) It is a defence to a charge under paragraph (g), (h), (i) or (j) of subsection (1) for the person charged to prove that the result of the analysis was not a correct result
(6A) In any proceedings for an offence under paragraph (h), (i) or (j) of subsection (1) evidence as to the effect of the consumption or use of a drug on the accused is admissible for the purpose of rebutting the presumption created by section 48(1B) but is otherwise inadmissible.
There are extensive provisions in the Act for determining impairment, and many pages on culpability associated with different prescribed concentrations of alcohol (BAC). What is the prescribed device?
55D Preliminary oral fluid tests
- A police officer may at any time require—
- (a) any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or
- (b) the driver of a motor vehicle that has been required to stop at a preliminary testing station under section 54(3); or
- (c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or
- (d) any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident— to undergo a preliminary oral fluid test by a prescribed device and, for that purpose, may further require the person, if inside a motor vehicle, to leave the motor vehicle for the purpose of undergoing the test.
Road Safety (General) Regulations 2019
Oral fluid testing devices (1) For the purposes of section 55D of the Act, the prescribed device is the oral fluid testing device known as the Securetec’s DrugWipe S SECURETEC DRUGWIPE TWIN or the SECURETEC DRUGWIPE II TWIN.
Victoria Police use the prescribed device (Securetec Drugwipe) to collect saliva, and any detection of up to three illegal drugs is an offence
Victoria Police only test for saliva these three drugs:
- Cannabis
- Methamphetamine (ice)
- MDMA (ecstasy / molly)
Victoria police advise that THC from cannabis can be detected up to 24 hours after use but experience has shown that this figure can differ, sometimes by several days. Similar ambiguity exists around detection times for MDMA and methamphetamine.
In releases and quotes to the media[link1][link2][link3][link4], police often claim that a positive detection through their RDT program indicates a ‘drug driver’, a term which insinuates that the person was impaired at the time of detection. Perhaps one of the most egregious examples is the continued moralising at festival-goers over positive detections. Following Rainbow Serpent Festival’s 2016 event, Ballarat’s Inspector Bruce Thomas was quoted[link4] saying, “It was a miracle that no one was killed on our roads given the number of drug drivers departing from the festival.”
The broad figures are used to frame an argument that there are many Victorians impaired by drugs on the road, therefore a widening of the current RDT program is required to improve road safety outcomes. What this means in practice is the purchasing of tens of thousands of the DrugWipe devices and the rolling out of more testing operations, both costly in terms of money and resources such as personnel.
Though there certainly are people who drive impaired by a drug, the number is likely to be far less than that derived through the current RDT program using the prescribed device, Securetec’s DrugWipe.
The goal of the RDT program is the same as any law under the Road Safety Act 1986, “to provide for safe, efficient and equitable road use; and to set out the general obligations of road users in relation to responsible road use.”
There is no community disagreement over road use being safe, efficient and equitable. Perhaps it could be said that an obligation of road users is to have no drugs at all in ones system, but that begs the question, does any detection of a drug in ones system indicate that a person was not approaching road use responsibly?
Check out our podcasts and posts on the topic to learn more about Securetec’s device, the current law and why there is a mismatch between detection and impairment. At the moment, it appears that the Road Safety Act and the resources which are allocated to enforce it and keep our roads safe are being used for a proxy prohibition war on people who use certain drugs, regardless of their ability to drive a car safely.
We need policies that focus on removing IMPAIRED drivers from the road, no matter what drug they have taken or if they are impaired in some other way.
NEWS
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RDT Victoria Timeline
Research: Drugs & Driving
March 1, 2010
Drugs & Driving, Prevention Research Quarterly, DrugInfo Clearing House Australian Drug Foundation Professor Con Stough and Rebecca King, Drugs and Driving Research Unit, Brain Sciences Institute, Swinburne University, Melbourne, Victoria Detection of impaired driving
Read more
Research: Cannabis and Impaired Driving
October 1, 2001
An Evaluation of the Efficiency of Sobriety Testing to Detect Blood Levels of Cannabis and Impaired Driving Ability, Katherine Papafotiou, BAppSc. (Hons). October 2001
Read more
Road Safety (Amendment) Act 2000
April 12, 2000
Road Safety (Amendment) Act 2000, PARLIAMENT OF VICTORIA Clause 6 New offences relating to driving while impaired by a drug Section 49(1)
Read more
Drugs And Driving Unit Established
May 1, 1997
The Drugs and Driving Unit (DDRU) Was established in 1997 to conduct high quality research in the general area of drugs consumption and driving.
Read more
Inquiry Into Effect of Drugs on Road Safety
November 11, 1996
INQUIRY INTO EFFECTS OF DRUGS (OTHER THAN ALCOHOL) ON ROAD SAFETY IN VICTORIA, Parliament of Victoria Report Introduction I Chairman’s Preface This Report concludes the Inquiry into the effects of drugs (other than alcohol) on road safety in Victoria.
Read more [/vc_tta_section]
