Offences Involving Drugs .
Offences involving drugs other than alcohol:
It is an offence for a person to drive or attempt to drive a motor vehicle while any prescribed illicit drug is present in their oral fluid, blood or urine (Road Transport (Safety and Traffic Management) Act s.11B).
Oral fluid tests
Police can require anybody driving or attempting to drive a motor vehicle to undergo one or more oral fluid tests (s.18B).
When a sample must be provided
If an oral fluid test shows that there may be one or more prescribed illicit drug in the person’s oral fluid, they are arrested and taken to a nearby police station or other place decided by the officer to supply an oral fluid sample (s.18D).
The oral fluid sample is placed in a container, fastened, sealed, marked and labelled. A certificate is then given to the person providing the sample to enable the sample to be identified.
The sample is then sent to a laboratory prescribed by the regulations for testing.
Altering the reading
It is an offence for any person to alter the amount of a prescribed illicit drug in a person’s oral fluid before an oral fluid test, or after an oral fluid test and before supplying an oral fluid sample (s.18G).
The section 33B certificate
The drug analysis is recorded on a section 33B certificate. The certificate can be tendered in court and, if the oral fluid sample was taken within two hours of the event that entitled the officer to request it, the court will accept it as proof of the reading at the time of that event.
Refusing an oral fluid test
It is an offence to refuse to undergo an oral fluid test. Failure to provide an oral sample is regarded as a refusal and is therefore an offence (s.18D).
When police cannot administer an oral fluid test.
There are some restrictions on the power of police in relation to oral fluid tests and oral fluid samples. Police may not ask a person to take an oral fluid test or provide a sample if:
• the person is admitted to hospital for medical treatment, unless the medical practitioner in immediate charge of the treatment is notified and does not object
• the person is severely injured, and the procedure may be dangerous
• it has been two hours or more since the incident that allowed the police to test
• the person is at home.
Blood and urine tests
Police may require a person who has attempted to provide an oral fluid sample but been unable to do so to provide a blood or urine sample (s.18E).
How much is too much?
When a person is charged with driving under the influence of a drug or alcohol, the quantity taken is not the issue. What is relevant is the extent to which the drug or alcohol has affected the person’s ability to drive.
How police judge
The police assess the person for signs of being affected such as slurred speech, unsteadiness on their feet, glazing of the eyes and their general manner and demeanour.
Assessment after a negative breath test
Even if a breath test has proved negative, a person can be required to undergo a further assessment of their condition under some circumstances.
Further assessment can be carried out if:
• the police officer has a reasonable belief that the person is under the influence of a drug because of how they drove or attempted to drive, and
• the assessment is carried out by a police officer at or near the place where the person took the breath test (Road Transport (Safety and Traffic Management) Act s.25).
The police may take a person to a medical practitioner to obtain a blood or urine sample (subject to the same restrictions as when they require a person to undergo a breath test or analysis – see When police cannot administer a breath test or analysis