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Drug Driving Laws “Unfair” Says Retiring Magistrate

It would appear that retiring Magistrate David Heilpern (Lismore) thinks that Australia’s driving laws are unfair. In a recent radio interview on the ABC’s RN Law Report, Mr. Heilpern gave credit to Australia’s harsh approach to drug driving laws as one of his main reasons for retiring early.

The concerns of Mr. Heilpern centre around driving law(s) that focus more on the detection of the presence of a drug in a driver’s body, and less on whether or not that driver was actually intoxicated while driving.

There is little argument that driving while intoxicated, due to either alcohol or other drugs, is a dangerous activity. We only need to look at the endless statistics all across Australia to see evidence of that. However, some drugs (particularly cannabis) can remain in a person’s body for weeks or even months after they have been consumed, even though the impairment only lasts for a shorter period of time. Mr. Heilpern argues that there is:

no real evidence of a link between trace amounts of a drug in a person’s body and an increased crash risk”.

If this is correct, then should a positive test for “drug presence” – where there was no other signs of intoxication – receive a non-conviction?

That’s where things start to get very complicated.

Usually when an individual is charged with a criminal offence, the prosecutor must prove two components:

  1. The guilty act – that the person did in fact violate the law; and
  2. The guilty mind – that they intended to commit the act.

If the prosecution is unable to prove both of these components, then they have failed to sufficiently argue their case and the charges may be dismissed.

However, traffic law is different.


In traffic law, if a person is caught speeding it is not necessary to prove that the person intended to speed, only that the person did in fact speed. Similarly, if a person runs through a red light, “I did not not intend to run the red light” is not an acceptable defence and the charge may be upheld. In other words, when it comes to driving laws the onus is often on the driver to prove that they did not commit the offence, rather than the onus being on the prosecutor, who in most criminal matters must prove them guilty. The term for this onus of proving guilt vs not guilt is “strict liability”.

What this means for drivers is that the notion of automatic licence suspension for a positive drug test lies on the principle of strict liability (the prosecutor doesn’t have to prove that you meant to have drugs in your system while you drove) and not with the usual legal definition of a criminal offence, which needs evidence of both guilty act and guilty mind. In other words, it is easier for the prosecution to secure a conviction.

Mr. Heilpern indicates that he does not see evidence that the Government mentality around drug driving is working:

“…. there is no clear link between a positive test and adverse driving, given minute levels of the drug can be detected……. the vast majority of people who are brought before the Courts on this charge are not affected by the drug…” 

The appropriateness of this approach in NSW is further drawn into question when the NSW Government’s Centre for Road Safety has advised drivers to:

“…leave a 12-hour gap between consumption and driving…”

However, people have lost their licence, their jobs, and even relationships as a result of relying on this “official” advice, which has been proven to be incorrect. It is no wonder that the Centre has recently updated their advice to:

“people who have used illegal drugs should be conservative when deciding to resume driving.”

It would appear that the NSW Government is using traffic law to fight the War on Drugs and this is having serious consequences for drivers.

It would be far more responsible to redirect some of the resources that have been allocated to this strategy into methods that have proven their effectiveness in reducing the road toll, such as driver behavioural change and early intervention programs.

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