Why are changes to the drug driving regime needed?

  • Currently, police officers can stop and test drivers randomly at the roadside for drink driving. The harm of drug driving justifies a similar approach – especially as evidence indicates that the existing regime is not as effective as it could be at reducing drug driving harm.
  • The existing regime is based on an impairment test following an officer establishing that they have ‘good cause to suspect’ a person has consumed drugs. Under the current approach:
    • Impairment is assessed through a compulsory impairment test (CIT), which is a behavioural test, undertaken by a specially trained police officer. It comprises eye, walk and turn, and one-leg-stand assessments. A driver who fails a CIT is required to undertake an evidential blood test.
    • Serious criminal penalties result if a blood sample identifies the presence of any qualifying drug in the driver’s system. Qualifying drugs are defined in the Land Transport Act 1998 and include both impairing illicit drugs and prescription medicines.
    • For a first and second offence, a drug impaired driver could receive a prison term of up to three months or a fine of up to $4,500, and a mandatory disqualification from driving of six months or more. Police also have the power to forbid a person to drive for 12 hours, if a driver’s performance on a CIT is unsatisfactory.
  • The ‘good cause to suspect’ threshold, and length of time it takes to perform the behavioural test (it can be up to 1.5 hours), limit Police’s ability to perform enough tests to deter drug driving.
  • Research has shown that only 26 percent of drivers expect to be caught drug driving, compared to 60 percent who expect to get caught drink driving.

How much of a problem is drug driving in New Zealand?

  • Drug driving is a road safety issue, and a major contributing factor to deaths and serious injuries on New Zealand roads.
  • International research shows that many recreational and prescription drugs have the potential to impair driving, and New Zealand studies show that drivers are using those drugs and driving.
  • In 2019, 103 people were killed in crashes where the driver was found to have drugs other than alcohol in their system. This represented 28 per cent of all fatal road crashes, ahead of drivers with excess alcohol at 26 per cent. It is clear that our current approach is not effective in deterring drug driving on our roads.

What are the key elements of the Bill?

  • The Bill proposes a new random roadside oral fluid (saliva) testing regime. This oral fluid testing regime would sit alongside the current CIT approach to drug driving.
  • Under the new regime, a police officer would be able to stop any driver of a motor vehicle and administer an oral fluid test without good cause to suspect a driver has consumed drugs, consistent with the existing approach to drink driving enforcement.
  • Drivers who fail two consecutive oral fluid tests would commit an infringement offence, the penalty for which is aligned to the drink driving infringement penalty. The driver would be forbidden from driving for 12 hours.
  • A driver who passes the first oral fluid test (or passes a second test after failing a first) would usually be free to go.
  • Drivers who fail two consecutive oral fluid tests can elect to undertake an evidential blood test if they wish to challenge the result. A medical defence is available for people who have taken drugs in line with their prescription.
  • Once a police officer has stopped a driver, the officer may require the driver to carry out a CIT if the officer has good cause to suspect a driver has consumed drugs. This can only be done in certain circumstances:
    • before beginning the oral fluid testing process (once a driver has been required to undergo a CIT, they cannot be required to take an oral fluid test)
    • when a driver has passed the first oral fluid test (or failed the first and passed the second) but the police officer has good cause to suspect the driver has consumed drugs that the device may not be able to test for
    • when more than one drug is identified on the first oral fluid test.
  • If a driver fails a CIT test Police may then require them to undertake a blood test. Evidential blood tests could continue to be taken from injured drivers, and the Bill also enables Police to require a driver to have a blood test if they have failed two oral fluid tests and have been involved in a crash that has resulted in another person being injured or killed. If qualifying drugs are found in their blood sample, they could be subject to either infringement or criminal penalties, depending on the levels of the drug in their system.

What drugs will be captured by the regime?

  • The oral fluid testing devices will test for the most prevalent drugs (or drug classes) in New Zealand. Initially, this is likely to include THC (the psycho-active ingredient in cannabis), methamphetamine, benzodiazepines (sedatives) MDMA (ecstasy), opiates (e.g. morphine) and cocaine.
  • In some instances, a driver may elect or be required to undertake a blood test. The blood sample will then be tested for the presence of any qualifying drug. ‘Qualifying drugs’ are defined under the Land Transport Act as any substance, preparation, mixture, or article containing a controlled drug specified in Schedule 1 or 2, or any of Part 1, 4 or 7 of Schedule 3 of the Misuse of Drugs Act 1975. The Bill proposes for this definition to expand to include any drugs contained in Parts 2, 3, and 5 of Schedule 3 of the Misuse of Drugs Act 1975 (given their impairing effects).

What is the testing process? How long does an oral fluid test take?

  • The exact testing process and time to undertake an oral fluid test will depend on the type of device procured.
  • The testing process for some devices involves several swipes of the tongue which can be done in seconds with a small device.
  • Technology is constantly improving but based on the technology currently available, some devices could return an initial result in two to five minutes. The time taken to return a result will depend on a range of factors including the type of device procured, the threshold in the device, and the number of drugs the device tests for.

How accurate are the oral fluid tests?

  • The exact accuracy will depend on the type of device procured, but in general, the risk of false positives is quite small.
  • Studies show that the Securetec DrugWipe device, for example, has controlled lab environment accuracy of 100%, and in-field accuracy of at least 90%.[1] Some testing devices can be calibrated with higher detection thresholds, which can reduce the chance of false positives.

[1] Arkell,T., Kevin, R., Stuart, J., Lintzeris, N., Haber, P., Ramaekers, J., & McGregor, I. (2019). Detection of Δ9 THC in oral fluid following vaporized cannabis with varied cannabidiol (CBD) content: An evaluation of two point‐of‐collection testing devices. Drug Testing and Analysis, 11(10), 1486-1497. doi.org/10.1002/dta.2687.
Arnston, M. (2013). Laboratory-based evaluation of oral fluid testing devices. The centre for Forensic Science Research Evaluation.

What procedural safeguards are proposed to avoid false positive test results?

  • If a driver fails an initial oral fluid screening test the will be required to take a second oral fluid test. A driver will only be penalised if they fail two oral fluid tests. We estimate this will reduce the mathematical probability of false positives to between 0.01% - 5.5%[2]
  • Police will also have robust training and procedures in place to mitigate any risk of inaccuracies caused by operator error.
  • A driver that fails two oral fluid tests will also be able to elect a blood test to conclusively prove that they do not have drugs in their system.

[2] Ministry of Transport. (2020). Enhanced testing regime for drug-impaired driving: Cost-benefit analysis. Retrieved from www.transport.govt.nz

Can the oral fluid test result be contaminated?

  • It is highly unlikely for contamination to occur during the testing process.
  • This is because oral fluid tests are sealed prior to use, and (subject to the type of device procured) the collection pads will likely only come in contact with the driver’s tongue for 1-2 seconds, and are then sealed within the device.

Will Police conduct a drug test every time they conduct a breath test?

  • This is an operational decision for Police.
  • Police will be able to test for alcohol and/or drugs at the roadside.

Who can be required to take the oral fluid drug test?

  • As with alcohol, the drug driving regime is focussed on addressing the road safety risk of driving a motor vehicle after having consumed impairing drugs. Car or bus passengers and people walking or using non-motorised devices would not tested.

Will Police have an annual target number of tests to conduct?

  • The proposed oral fluid testing regime can deliver a large number of tests cost effectively. This will likely be phased in over a three-year period, reaching 66,000 oral fluid tests per year. Police will be funded to deliver 33,000 oral fluid tests in the first year, increasing to 50,000 tests in the second year, and 66,000 tests in third and subsequent years.
  • Police will determine the most efficient and effective method of delivery for targeting drug driving risk, allowing the method to adapt to address new risks as they develop.

What happens if I refuse an oral fluid test?

  • If a driver refuses an oral fluid test, they will be required to undertake an evidential blood test. It is an offence to refuse to undertake an evidential blood test when required.

Will a driver be penalised if they have trace amounts of a drug in their system?

  • Low level tolerance thresholds would be applied to the detection of drugs in blood and set in the oral fluid devices for the detection of drugs. These thresholds would avoid the risk of penalising drivers who have accidental or passive exposure to drugs, low residual levels of a drug, or consumed doses of some prescription or over the counter medicines that are unlikely to impair driving.
  • The Bill outlines that before the Minister of Police can approve an oral testing device, they must be satisfied that the device will return a positive result only if the device detects a drug at a level that indicates recent use.
  • A medical defence will be available to drivers who have taken prescription drugs in accordance with their prescription, and have provided a blood sample through an evidential blood test.

What penalties are proposed?

  • The Bill proposes to establish infringement and criminal offences. These will apply depending on the testing process and the level of drugs found in a driver’s system.
  • An infringement combination offence and a criminal combination offence would also apply in different scenarios. This recognises the additional road safety risk of driving after consuming multiple drugs (or drugs and alcohol).
  • The proposed offences and penalties are as follows:
    • $200 infringement fee, 50 demerit points and a 12-hour prohibition from driving for driving or attempting to drive with one qualifying drug in blood below the criminal limit or when two consecutive oral fluid tests confirm the presence of a drug
    • $400 infringement fee, 75 demerit points and a 12-hour prohibition from driving for driving or attempting to drive with more than one drug (or drug and alcohol) in blood below the criminal limit or when two consecutive oral fluid tests confirm the presence of more than one drug
    • a prison term of up to three months or a fine of up to $4,500, and a mandatory disqualification from driving of six months or more for driving or attempting to drive with one qualifying drug in blood at or above the criminal limit
    • a prison term of up to six months or a fine not exceeding $4,500, and a mandatory disqualification from driving of nine months or more for driving or attempting to drive with more than one drug (or drug and alcohol) in blood at or above the criminal limit
    • a prison term of up to two years or a fine not exceeding $6,000, and a mandatory disqualification from driving for one year or more for a third and subsequent convictions for drug driving
    • a prison term of up to 3 years or a fine not exceeding $10,000 and a mandatory disqualification from driving of one year or more if a driver has caused the injury or death of a person and has a qualifying drug in blood below the criminal limit.

Why are higher penalties proposed for driving after consuming multiple drugs or drugs and alcohol?

  • In 2017 and 2018, over 30 percent of deceased drivers and drivers that failed a CIT in New Zealand were found with a combination of drugs or drugs and alcohol in their system.
  • A number of case-control studies indicate that consuming drugs and alcohol or more than one drug significantly increases a driver’s risk of crashing or being seriously injured. The combined use of alcohol and drugs has been shown to be more risky than any one substance in isolation, except for alcohol at high levels.

What are the criminal levels?

  • The Government agreed that criminal levels would be specified in legislation following advice from an independent expert panel.
  • The panel will provide advice on setting criminal limits at drug concentrations in blood that align with drink driving measures of impairment, being a limit equivalent to a blood-alcohol limit of 80mg/100ml – the level of the current drink driving criminal penalty.
  • These levels haven’t been included in this Bill due to delays in establishing and therefore receiving advice from the panel. The intent is for criminal limits to be added by Supplementary Order Paper. To ensure transparency about the limits, the proposed limits will be available to the public during Select Committee consideration of the Bill.

What drugs will have criminal levels set for them?

  • Criminal levels will be established for the most prevalent drugs used by New Zealand drivers, subject to the available evidence and advice of the Expert Panel. This will include the drugs tested for through the oral fluid devices.
  • There are more than 100 other impairing drugs available in New Zealand. It is not possible to set criminal levels for all of these because there is insufficient evidence or research to establish the impairing effects of a drug, or because the drugs are new or quickly evolving (such as designer drugs).

What happens when a blood test shows that a driver has taken a drug without a criminal limit?

  • As is currently the case, drivers would continue to receive a criminal offence following a failed CIT where the driver’s blood sample shows the presence of any qualifying drug without criminal limits set.
  • An infringement penalty would apply for the presence of any qualifying drugs that do not have criminal limits, when impairment has not been established through a CIT.

Does this proposal have an impact on people’s rights under the NZ Bill of Rights Act 1990?

  • We acknowledge that introducing a random oral fluid testing regime impacts on several rights affirmed and protected by the New Zealand Bill of Rights Act 1990 (BORA).
  • Checks and balances have also been built into the regime to limit the impact on affirmed rights. These include:
    • the proposed oral fluid testing process includes the procedural safeguard of two oral fluid tests, which establishes a reasonable basis for establishing liability at an infringement level and reduces the probability of false-positive test results
    • the process is less invasive, and will detain most people for a significantly shorter duration than the current CIT process
    • a medical defence is available for drivers who have consumed drugs in accordance with a valid prescription and instructions from their health practitioner
    • the initial sanction for failing two oral fluid tests is an infringement offence, not a criminal sanction
    • drivers have the option of electing to provide an evidential blood sample if they wish to use a medical defence or dispute the results of oral fluid tests
    • the proposal to issue an infringement offence following two failed oral fluid tests reduces reliance on the more invasive blood test.

How does the proposal mitigate concerns that a drug testing regime will disproportionately effect Maori?

  • New measures to address drug-impaired driving could have disproportionate impacts for Māori men and women, who are over-represented at all stages of the criminal justice system and receive a disproportionate number of drug convictions.
  • The infringement offence scheme mitigates the risk of Māori men and women receiving criminal penalties for drug-impaired driving. Police are currently undertaking a programme of work to manage the potential for unconscious bias in police practices.

How does the Bill interface with the Cannabis Referendum?

  • The proposed drug driving regime is based on detecting and deterring the use of impairing substances in drivers, regardless of whether or not the substance that they have consumed is illegal.
  • If cannabis were legalised following the referendum, the proposed drug driving regime would continue to test for cannabis through oral fluid testing at the roadside, just as it would for other legal impairing substances.

Did you consult on this?

  • Public consultation occurred between May-June 2019. The purpose of the consultation was to get public feedback about possible approaches to improving our drug driving system, including the methods that could be used to screen and test for drugs, the circumstances in which a driver should be tested, what drugs should be tested for and how police should deal with drug driving offences. 
  • We received 88 submissions in response to the discussion document and many noted that the issues were complex.
  • Although views on some aspects differed, most submitters favoured a zero-tolerance, presence-based approach to roadside drug testing, although there were concerns about the accuracy of oral fluid testing devices and Māori being disproportionately impacted by drug driving enforcement measures. The majority of submitters supported taking a second oral fluid test if someone failed the first test, followed by taking a blood sample for evidential purposes. However, there was mixed support for random drug testing of drivers. The summary of submissions report can be found on our Drug Driving page

What happens next? Can I have a say?

  • If the Bill passes First Reading, it will be referred to Select Committee.
  • The Committee usually has at least six months to examine the bill and prepare a report for the House.
  • Select Committees invite public submissions on a bill, and then hold public hearings to listen to some of those who made submissions. After hearing submissions they work through the issues raised, and decide what changes, if any, should be made to the Bill.