Roadside drug driver testing

Roadside testing to deter drug driving looks to be back on again with the Government’s Land Transport (Drug Driving) Amendment Bill (Bill) passing its first reading in August. Underlining the need for a workable solution, the Bill’s explanatory note reveals that between 2019-2022, on average 30% of road deaths each year involved crashes where drivers had consumed impairing drugs.

The previous government passed legislation in 2022 to enable police to carry out a roadside oral fluid test (OFT) for drugs. However, no OFT device was found that met the criteria (in the legislation) to be used as the evidential basis for taking action at the roadside.

To resolve the issues with the current OFT regime the Bill would amend the Land Transport Act 1998 to introduce new device approval criteria for their use as a screening tool, as opposed to evidentiary testing.

With OFT devices used as a screening tool, drivers who return a positive test for a specific qualifying drug will then need to undergo a second test. Where two positive roadside tests are returned, the driver will be prohibited from driving for 12 hours. A positive test will require a sample of the oral fluid to be laboratory tested before any infringement notices can be issued. Drivers refusing to take a screening test would be issued with an infringement fee and demerit points on the roadside, and prohibited from driving for 12 hours.

Oral fluid testing for drug driving is used overseas, including in Australia, and the Government’s stated intention is to bring us into line with Australian legislation. The findings of the select committee report are due back on 20 December 2024.

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Contact Bri Thorne or Roger Philip, our specialists in this area of law.