Home The new Drug-Drive provisions of
the Road Safety Act 1986 (Vic)
An analysis of the legal framework.

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Introduction

Recent amendments to the Road Safety Act 1986 ("the Act") make it an offence to drive or be in charge of a motor vehicle whilst impaired by a drug: (s.49(1)(ba)). The new provisions came into force on 1 December 2000 and are in addition to the pre-existing offence of driving a motor vehicle while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the motor vehicle (s.49(1)(a)).

This article discusses the effect of the legislation in the following areas in particular:

• the way the legislation might affect a person's right to silence,
• why it is now illegal to drive after consuming anything which can affect bodily functions in any way.
• the unrealistic nature of the statutory defence,
• the way the legislation fails to protect a person's privacy with respect to publication of video evidence, and how the video evidence can be used to prosecute other offences.

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Drug Impairment Assessments & Right to Silence

The police are empowered to perform drug impairment assessments on any person who could be required to undergo a preliminary breath test or who has provided a sample of breath for analysis if in the opinion of the police officer the person's behaviour or appearance indicates that the person may be impaired by something other than alcohol alone.

An assessment for drug impairment must be conducted by a police member authorised to do so by the Chief Commissioner of Police. S.55A(5)) requires the assessment to be carried out in accordance with the procedure prescribed by VicRoads and published in the Government Gazette. The procedure currently applicable is summarised as follows:

(a) an interview with the assessing officer in which the person is asked questions about his driving, interception by police, illnesses, injuries, medical history, and drug use;

(b) undergo an eye examination and eye movement test;

(c) walk nine heel-to-toe steps, about face and return;

(d) balance on one leg, then the other.

At the conclusion of the assessment procedure, the police officer must complete a report and review all available information and form an opinion as to whether the person may be impaired by a drug. The assessment must be video recorded (s.55A(6)) unless the police can prove exceptional circumstances for not doing so.

It is an offence to refuse to undergo an assessment when required to do so (s.49(1)(ca)) and the penalty is a minimum 24 months licence loss and $1,200.00 maximum fine for a first offence. It is noteworthy that the formulation of the assessment procedure is delegated to VicRoads. A part of the assessment procedure is undergoing an interview in which the police member is required to ask the person questions about the person’s driving, interception, alcohol consumption, drug use, health and medical history, and details of any prescription or non-prescription drugs being taken.

At common law a person has a right to refuse to answer questions put by a police member during an interview. Parliament has not expressed any intention in the Act to take away this common law right to silence. VicRoads has not been delegated with any authority or power to take away a person’s common law right to silence. Although the legislation does not expressly preserve the right to silence "the justice of the common law will supply the omission of the legislature" - Cooper v. Wandsworth Board of Works (1863) 142 E.R. 420, and see also Bropho v. Western Australia 171 CLR 1 at 17. "A statute will not be construed as excluding so valuable a privilege unless an intention to do so clearly appears" - Gibbs C.J. Sorby v. Commonwealth (1983) 46 ALR 237.

A person who is required to undergo a drug impairment assessment may lawfully refuse to answer any questions put to him by the investigating officer (save for stating his name and address), as any answers given would almost certainly be self-incriminating. Similarly, any person investigated for a drink driving offence would be prudent if he declined to answer any questions asked of him by the police. There is a risk that a police member may treat a refusal to answer questions during a drug impairment assessment as a refusal to undergo the assessment. For this reason unnecessary litigation could be avoided if the Act made it clear that the person’s right to silence was not affected.

It is surprising that parliament seems to give an unfettered delegation to VicRoads. Such are the dangers of legislative delegation. If the police member is obliged to conduct an interview with a suspected offender, the member should also be obliged to inform the suspect that he is not obliged to say anything in answer to any question other than to state his name and address.

If a person fails the drug assessment, the police member may require the person to provide a sample of his blood and/or urine for analysis. The choice is the member’s, not the driver's. The sample must be taken by a medical doctor or a nurse. If the person refuses to provide the sample he commits an offence punishable by minimum 2 years licence disqualification for a first offence.

 

Lack of definition of "Impairment"

The State Minister for Transport, Mr Batchelor, in his second reading speech on 16 March 2000 stated that "The bill defines impairment to mean that the driver’s behaviour or appearance is such as to give rise to a reasonable suspicion that he or she is unable to drive properly". Leaving aside for the moment the question of what a 'reasonable suspicion' is, it is important to note that the legislation which was passed contains no definition whatsoever of "impairment". The offence under s.49(1)(ba) is "driving a motor vehicle or in charge of a motor vehicle while impaired by a drug". "Drug" is defined broadly to mean anything that you can put into your body which will deprive you of your normal mental or physical faculties (s.3(1)). On this definition "every-day" drugs such as caffeine, codeine, laxatives and probably even estrogen fall within the definition, as each drug has the ability to deprive us of one or more of our bodily functions, and thereby "impairs" us. Nothing in the Act modifies or constrains the definition of "impairment" as it is used in s.49(1)(ba).

Whereas s.49(1)(a) (driving under the influence of a drug) requires the prosecution to prove a correlation between the presence of a drug and a person’s inability to have proper control over a motor vehicle, the provisions of s.49(1)(ba) (driving whilst impaired by a drug) do not do so. S.49(1)(ba) simply refers to "driving while impaired by a drug" without any reference to control of a motor vehicle. Save for the possible implications that may be derived from s.47, the offence of "driving while impaired" is committed by every woman driver who is taking the pill, as her ability to reproduce is impaired. Similarly every person who has caffeine in his blood will have his ability to sleep impaired. The legislation does not exclude these situations from being offences under the Act.

But, you may ask: "doesn’t the prosecution have to prove that the impairment affected my ability to have proper control of a motor vehicle?" The answer is NO! S.48(1AD) is the only provision that tries to limit the meaning of "impairment". It states that for the purpose of ss 55A (drug assessments) and 55B (blood/urine samples) a driver is not to be taken to be impaired unless his behaviour or appearance is such as to give rise to a reasonable suspicion that he or she is unable to drive properly. This limited meaning of impairment does not apply outside s.55A or s.55B. With respect to s.55A, this has the effect of preventing a police member from requiring a driver to undergo a drug assessment unless the driver's behaviour raises a reasonable suspicion that the driver can not drive properly. With respect to s.55B, the words probably have the effect of preventing the police member from requiring a blood or urine sample unless the police member is of the opinion that the driver is impaired by a drug such that he can not drive properly. Limiting the circumstances in which a drug assessment takes place does not change the nature of the offence. It just places an obstacle in the way to its proof. It is an obstacle which is easily overcome because all the police member needs to do to get over the hurdle is to state that the behaviour of the driver (prior to the drug assessment) caused him to form the opinion that the driver was not able to drive properly! Once he forms that opinion, he can make the requirement for the drug assessment.

There is nothing to prevent the police member from obtaining evidence to prove the drug-drive offence other than doing the drug assessment. The drug assessment procedure under S.55A, and the blood sample collection provision under s.55B, are optional steps that may be taken to assist the police to obtain evidence to prove a drug drive offence. The offence can be proved in other ways without a drug assessment and without being subjected to the limiting words found in s.48(1AD). Further, s.48(1AD) does not limit the definition of impairment in the case of a passenger (e.g. s.53(d) or s.55A(d)), or a person in charge (e.g. s. 53(a) or (c), or s.55A(b) or (c)). And most importantly, the limitation found in s.48(1AD) does not apply to s.49(1)(ba), which is the provision that creates the offence. It is not an element of the offence that the impairment must be such that the driver could not drive properly.

As a drug assessment is not a prerequisite to obtaining a conviction for the offence, there is no obligation on the police to prove that a driver was incapable of having proper control of a motor vehicle. A person can be convicted of driving while impaired without any drug assessment being conducted. A blood sample obtained pursuant to s.55(11) (at the request of the defendant following a breath test) or s.56 (driver in hospital after an accident) will suffice to provide the evidence to prove a conviction against s.49(1)(ba). The limiting words in s.48(1AD) are not applicable in such a case. There is nothing in the Act to restrict the broad meaning of the words "drives a motor vehicle while impaired by a drug" as found in s.49(1)(ba).

S.49(3A) sets out a series of facts which, if proved, are deemed to constitute proof of the offence of driving while impaired by a drug. These facts include proof that a person’s behaviour on an assessment is affected by a drug to such an extent that he is not able to drive properly. Could this be an attempt to tie the s.49(1)(ba) offence to a person’s inability to have proper control of a motor vehicle? Possibly, except that 49(3A) is optional, not obligatory. There is nothing in the legislation which obliges a prosecutor to take advantage of the deeming provision provided in s.49(3A). If a prosecutor chose to, he could ignore s.49(3A) and the offence could be proved without any reference whatsoever to the defendant’s ability to have proper control of a motor vehicle. S.49(3A) assists the prosecution to prove the offence. It does nothing to restrict the manner in which the offence can be proved and does nothing to qualify the elements of the offence contained in s.49(1)(ba). Being unable to have proper control of a motor vehicle is not an element of an offence under s.49(1)(ba) and depending on how the case is presented the police might not need to concern themselves with that aspect.

S.57(2) allows for the admissibility of a certificate certifying as to the usual effect of a drug on a person’s ability to drive. Such a certificate is hardly relevant when the status of the person’s ability to drive is not an element of the offence. The offence is proved by showing that the defendant had driven or been in charge of a motor vehicle and at the time of driving he had a drug in his blood. The offence can be proved by tendering a certificate as to the taking of the person’s blood, together with a certificate of approved analyst stating that the person’s blood contained a particular drug, together with the evidence of an expert who states whether that particular drug comes within the definition of "drug" at s.3(1), i.e. that it can deprive a person of any of his normal mental or physical faculties. Once those matters are accepted as evidence, the offence is proved. At no stage in proving such a case would it be necessary for anyone to form any opinion that the driver was not able to drive properly and it is therefore not a defence for the defendant to prove that he was able to drive properly.

It is not clear whether the deprivation of faculty needs to be complete or whether partial deprivation would suffice. There is nothing in the legislation which requires a drug to be present in the blood in any particular quantity. Even a trace of an impairing drug could result in an offence against s.49(1)(ba). As the legislation requires proof of impairment, not proof of inability to control a motor vehicle, the legislation’s effect is to impose a "zero" limit on all drug-driving.

The problem will be revealed if a defendant obtains leave under s.57(7) to cross examine an "approved expert". The court may grant leave only if the strict criteria in s.57(7A) are met. The approved expert will attend court and he will give evidence that the substance found by the analyst to be in the person’s blood was a drug within the meaning of s.3(1) and that the drug impaired one or more bodily functions of the defendant. The expert does not need to worry about whether or not the drug impaired driving. The defence has an opportunity to cross examine the expert. It will be almost impossible to prove the expert wrong on these matters, and as the offence does not require proof of inability to have proper control of a motor vehicle, the offence is thus proved if a literal interpretation of s.49(1)(ba) is applied. The certificate of the expert remains admissible and when tendered it is proof of its contents in the absence of evidence to the contrary. However it is important to note that proof of the offence does not require the tendering of the certificate into evidence. The offence is proved by the viva voce evidence of the expert and there is no requirement that this evidence should address whether or not the driver was capable of having proper control of his motor vehicle because this is not an element of the offence.

One might argue that it is implicit in the legislation that the offence of "driving while impaired by a drug" is intended to apply only to circumstances where the defendant is proved to be incapable of having proper control of a motor vehicle. The "purpose approach" to statutory interpretation enables the court to choose between an interpretation that will result in inconvenience, injustice or absurdity, and another which avoids such a result : Ingham v. Hie Lee (1912) 15 CLR 267. But to do so here will require a court to read into s.49(1)(ba) similar qualifying words to those which have always appeared in s.49(1)(a). This begs the question why didn’t parliament give s.49(1)(ba) the same words? Alternatively, why didn't parliament simply direct the assessment and testing provisions (ss. 55A, 55B, 56, 57 and 57A) to proving the existing s.49(1)(a) offence and thus avoid the need to insert s.49(1)(ba) at all? When considering the "purpose approach", one must ask what purpose has s.48(1AD) other than to limit the meaning of "impairment" in one particular cirmcumstance? This express limitation on its meaning is inconsistent with the suggestion that the Act as a whole implies a general limitation on its meaning. These are strong indications that the meaning of the word "impairment" as used in this legislation is not limited to impairments that affect a person's ability to drive a motor car. Parliament could avoid these problems by extending the reach of s.48(1AD) to make it applicable to s.49(1)(ba).

Members of the Road Safety Committee which developed the legislation lead parliament to believe that the legislation required proof of inability to drive a motor vehicle as an element of the offence. Mr Carli, MHR for Coburg, is quoted in Hansard (5 April 2000) as saying:
"The new offence of driving while impaired needs to be based on a series of evidence. Firstly, it has to be demonstrated by the police that the person was driving or in charge of the vehicle. Then it has to be demonstrated that a drug was present in the person's body; that his or her behaviour demonstrated an impairment which was consistent with the types of drugs that were found; and that his or her behaviour would result in that person being unable to drive properly. Those steps are included not only for the protection of the driver but also to ensure there is adequate evidence and proof that the person has been impaired by the drug and that that is identified as constituting impairment and interfering with their ability to drive, and therefore making them a threat on the road. This is strong legislation."

 

The statutory defence - s.49(3B)

To determine what this defence is about, you will need:

Road Safety Act 1986 ("RSA") ($18.92 in print)
Drugs Poisons and Controlled Substances Act 1981 ("DPCSA") ($27.40 in print)
Poisons Code (Call to Department of Human Services)
Commonwealth Standard for the Uniform Scheduling of Drugs and Poisons ($50.00) ("SUSDP")
ESP (extra-sensory perception)
A couple of hours of research.

To determine whether you qualify under this defence, you will need:

One criminal lawyer
One doctor
One chemist and/or pharmacist

S.49(3B) of the RSA allows a defendant to defend a charge by proving that he has used a "permissible non-prescription drug" and/or a "prescription drug" in accordance with advice given to him by a medical practitioner, dentist or pharmacist, and that the driver could not have reasonably known that consumption of the drug(s) would impair driving.

Obviously this defence is not available if the drug or drugs you consumed (whether in accordance with a doctors advice or otherwise) did not impair your driving. In that case, there is no statutory defence available. This leads to the incongruous result that s.49(3B) allows a statutory defence to the charge of driving while impaired by a drug if the prescription drug has impaired your driving, but does not allow any such defence in the event that it did not! If that sounds confusing, lets look at an example. Person A drives after taking prescription drug A and the court finds as a fact that this drug has impaired his driving. Person A has a defence under s.49(3B) if he can show that he followed medical advice when taking the drug and could not have known it would impair his driving. Person B drives after taking prescription drug B. Drug B is not known to impair driving, although it does impair some other bodily functions, such as the digestive system. Person B is assured by her doctor that drug B will not affect her ability to drive a vehicle. Person B can be charged and convicted of driving while impaired by a drug and is unable to rely on the s.49(3B) statutory defence. This is because the defence is available only if the drug has impaired driving. It is not available if the drug merely impairs your body without affecting your driving.

S.49(3B) provides a defence for people who have been found with "prescription drugs" or "permissible non-prescription drugs" in their blood. Prescription drugs are defined in s.3 of the RSA as a Schedule 4 or Schedule 8 poison under the DPCSA. "Permissible non-prescription drugs" are defined as Schedule 2 or Schedule 3 poisons under the DPCSA. If the drug found in a person’s blood is not a Schedule 2 poison, a Schedule 3 poison, a Schedule 4 poison or a Schedule 8 poison as defined by the DPCSA, then the defence is not available. S.4 of the DPCSA defines these schedules to mean the corresponding schedules set out in the Poisons List. The Poisons List is defined as being the poisons list appearing in Chapter One of the Poisons Code. The Poisons Code is defined as being a document created pursuant to s.12 DPCSA by the Minister for Health (Vic). The Poisons Code is available on the Internet, and from the Department of Human Services. It is not available from Information Victoria (the State Government Bookshop). So, the defence is available if the drugs found in your blood are contained in Schedule 2, 3, 4 or 8 of the Poison's List, which is found inside the Poisons Code. When you look at these Schedules, they give little assistance in determining what drugs may actually be included in them. For example, Schedule 2 of the Poison's List says:

Schedule 2
Pharmacy Medicine. - Substances, the safe use of which may require advice from a pharmacist and which should be available from a pharmacy or, where a pharmacy service is not available, from a licensed person.

Substances
The Substances included in the Schedule are the substances listed in Schedule 2 of Part 4 of the Commonwealth standard as in force from time to time.

While reading the Poisons List, use your ESP to guess that the Commonwealth standard referred to in the List is the Commonwealth Standard for the Uniform Scheduling of Drugs and Poisons (SUSDP). It seems that the Minister, when making his poisons list, uses words which have defined meanings under the DPCSA. If you take a look at the Poisons Code as published on the Internet, you will not see any definition of "Commonwealth Standard" in it. You are expected to guess that the list adopts the definition for "Commonwealth Standard" as defined in s.4 of the DPCSA. This "Commonwealth standard" is a document published from time to time by the Public Health Committee of the National Health and Medical Research Council. It is allegedly available from the Commonwealth Government Bookshop in Queen Street Melbourne, but I haven't yet found it, and I will not be surprised if the SUSDP refers to and incorporates by reference other documents, perhaps even an obscure United Nations treaty or convention which can be purchased only in Geneva.

It is now more than 12 months since this legislation was passed and I am no closer to seeing a list of drugs which this section applies to. Finding a list of "permissible non-prescription drugs" is a task which will elude the majority of lawyers and probably most medical practitioners. Fortunately for the police, this problem exists for defendants only. Try not to lose sight of the fact that s.49(3B) is supposed to protect motorists who innocently offend against the Act.

One can conclude from looking at the Poisons Code that the relevant schedules refer to drugs which can be acquired from a medical practitioner or from a pharmacist only. If you are taking any drug which is not a Schedule 2, 3, 4 or 8 poison you will be unable to rely on s.49(3B) for your defence. S.49(3B) does not provide a defence for users of unrestricted drugs, yet a charge of 'driving while impaired by a drug' can succeed against such persons.

The statutory defence is not available if your blood sample contains any drug which is not a Schedule 2, 3, 4 or 8 poison. The legislation expressly says that if any other drug is found in your blood, the defence is not available. Therefore, the statutory defence is not available if the blood sample contains caffeine or laxatives. It appears that if you have taken some antibiotics and pain killers under prescription from your doctor, and used them in accordance with his advice, and it was proved by certificate of an expert under s.57A that these drugs impaired you (and also impaired your ability to drive to such an extent that you could not have had proper control of a motor vehicle), you will still be prohibited from raising the s.49(3B) statutory defence if your blood contains some residue of the last cola or latte that you drank. The legislation places the onus on the defendant to raise and prove the defence. Good luck.

 

Video Evidence anomalies

S.55A(8) prevents a defendant using a video tape of his drug assessment for any purpose other than determining whether the assessment was done in accordance with s.55A(4). It appears that the video is not admissible to prove that the defendant did not exhibit signs of drug impairment, nor is it admissible to prove that the defendant was willing to undergo the assessment in circumstances where he is charged with refusing to undergo the assessment. It may be relevant evidence in any number of circumstances in proceedings for an offence against the Road Safety Act. It is impossible to think of any reason why a defendant should be prohibited by this legislation from admitting into evidence a video recording made of himself at the time of the alleged offence other than to cause prejudice to a defendant and hinder his defence of the charges. The legislation would be fairer if the restriction on admissibility applied to the prosecution only.

The legislation does not prevent the drug assessment evidence (including the video tape and interview) or the blood or urine analyses from being used against the defendant in prosecutions under another Act, such as a charge of possession or use of a prohibited substance. S.55A(8) restricts the use of the video tape in proceedings for an offence under the Road Safety Act but the section does not restrict in any way the use of the video tape as evidence in any other proceeding. It seems unfair for a person to be required by police to make admissions of his (potentially illegal) drug use, to video tape the confession, and then allow that confession to be used against the person in a prosecution for another offence, and perhaps lead to the execution of warrants to search property.

On 5 April 2000 Mr Carli MP (Member for Coburg, and member of the Road Safety Committee which developed the legislation) said in parliament: "Equally the bill is protective of civil rights in terms of the evidence gathered -- particularly video evidence -- and the destruction of it afterwards so that it cannot be used for other purposes".

The legislation provides for the destruction of the video evidence if the person is not charged or not found guilty of a "relevant offence" within a certain time period (s.55C), but not otherwise.There is no provision requiring the destruction of the video tape when a person is found guilty of a relevant offence, not even after the appeal period has expired. It is an offence to disseminate evidence obtained from a drug assessment if that evidence ought to have been destroyed. Hansard records the concerns MPs had about the potential for civil liberties to be infringed if video tapes are leaked to the press or the like: "The police need to ensure they have as foolproof a system as possible so that video evidence involving a well-known person who is caught and found guilty on a drug-related offence cannot be sold to a current affairs program" - Mr Leigh, Member for Mordialloc, House of Representatives Speech, 5 April 2000. Under this legislation it is not an offence to disseminate copies of a video tape of a person prior to him being charged, prior to his hearing, and after he is found guilty. Even selling a copy to a current affairs program is permitted. This leaves ample opportunity for matters of privacy and civil liberties to be abused. The term "the charge is not proceeded with" at s.55C(2)(b) is ambiguous and unhelpful in this respect.

Conclusion

Although it is commendable that parliament has enacted legislation with such a socially responsible intention, particularly at a time when defences to traditional drink driving charges are becoming harder to establish, it is unfortunate that the legislation was not drawn with more attention to detail and civil liberties. Urgent changes are needed to the legislation to prevent the possibility of abuse of the current situation where all forms of drug-driving are most probably illegal.

 

Copyright:
Sean P. Hardy
Barrister
Melbourne

8 December 2000

revised 8 January 2002

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