Drink and drug checkpoints may appear on New Zealand roads some time soon. Photo: NZ POLICE
Last month, Te Aka Hāpai vice-president and Otago Lakes Road Policing team leader Steve Watt outlined those concerns for the Transport and Infrastructure Select Committee, elaborating on the association’s written submission on the bill.
The chief concern is the lack of an explicit inclusion in the bill of a power of detainment for officers conducting random roadside drug tests, Steve tells Police News. Police can rely on section 114 of the Land Transport Act 1998, which has a power of arrest if a driver does not remain in place after being instructed to. However, the association would prefer the drug driving legislation specifically specifies a driver must remain until the result of a drugdriving oral fluid test (OFT) is known.
Police regularly deal with “difficult customers” so having that spelt out is imperative, Steve says. “The law covering excess breath alcohol and compulsory impairment test (CIT) cites that power of detainment. Including it here would align it with those.”
Also of concern, as the bill stands is that a driver can simply say, “No thanks” to a drug test and they would simply receive an infringement offence notice (ION) for failing to undergo the OFT. However, it’s likely that if police suspected a driver was impaired, they would move to a CIT.
The association is also troubled by the inconsistencies in consequences between the OFT process and a CIT. Under the proposed process, a driver who fails an initial OFT would be required to undergo a second OFT, which only carries an infringement notice. However, if an officer decides to move to a CIT, it carries the same penalties as drink driving. This gap in the law could lead to “perverse outcomes”, Steve says.
“Over 2019-2022, an average of 105 people a year died in crashes after drivers had taken impairing drugs. That’s 30% of all road deaths. We need to ensure drug drivers face the same level of accountability as those caught under the influence of alcohol.”
Looking ahead, the association is urging the Government to ensure there is thorough training and implementation of the new law.
“It’s complex but it’s a really important piece of legislation if we’re going to have fewer deaths and serious injury on our roads,” Steve says. “We have to get this right. We owe it to the public to ensure this legislation is watertight and delivers consistent, meaningful consequences for drug drivers.”
Busy year ahead
Director of Road Policing Superintendent Steve Greally acknowledges those sentiments but is confident the points raised at select committee are being well fleshed out.
“What we'll end up with is a well-considered piece of legislation that’s practical and workable and has been shaped by expert input,” he says.
He is hoping the bill will become law early next year and then Police will have 9 to 12 months to put the legislation into operation. Vital work is already under way, with the National Road Policing Centre working closely with legal, policy and forensic experts to deliver the new system.
Once Police gets the green light, the procurement process for roadside saliva testing devices as well as for a provider of laboratory services begins. Steve expects this to take about 12 months.
“We also have to prepare training, procedures, policy amendments, instructions, all those things... We'll be inviting districts to be part of this work… especially the frontline. They are the ones who are going to win the war for us. [Assuming the bill is passed], I expect we'll have something up and running by the end of next year.”
The Government has tagged $20 million to get the drug-driving system implemented. It has also set Police a target of conducting 50,000 drug tests per year for three years.
The likely drug-driving test process*
- A driver is pulled over and a decision is made to test for the presence of drugs. Reasonable grounds to suspect impairment are not needed. In time, checkpoints for both drugs and alcohol are likely, Steve says.
- An officer requires the driver to undertake an oral fluid test. If the driver refuses the test, they receive an infringement at the roadside.
- If the first OFT is negative (no indication of presence of drugs), the driver is free to go.
- If the first OFT is positive:
- The driver is required to give a saliva sample for laboratory analysis and is required to take a second OFT.
- If the second OFT is negative, the driver is free to go. However, they could receive an infringement later based on the outcome of the saliva analysis in the laboratory.
- If the second test is positive, they are forbidden from driving for 12 hours. They are also likely to receive an infringement later based on the outcome of the saliva analysis.
- The saliva samples are subsequently tested in the laboratory (to an evidential standard) for the presence of drugs above a set level that represents recent consumption. If found to be above the level, an infringement carrying high demerits is issued.
- For a failed CIT** (or failed OFT in the case of an injury crash), a blood sample is taken to analyse and ascertain the actual level of a drug. Depending on the level (lowrisk threshold and high-risk threshold), this can result in an infringement (low) or prosecution (high).
* The actual process will be subject to the bill passing and the procured device/s.
** Police will have scope throughout the process to move to a CIT, especially where impairment is suspected.
The Police Association’s full submission is available here.
