The Ministry of Transport and police have highlighted "conflicting" objectives in a document outlining how the Government could improve drug-driver testing.
The discussion document around drug-impaired driver testing was released by Police Minister Stuart Nash and Associate Transport Minister Julie Anne Genter on Wednesday.
The pair said the Government is seeking public consultation on options to improve the drug-driver testing process which Genter said makes it "hard for police to carry out".
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"Unlike with alcohol testing, drug testing comes with some unique challenges, which is why we want expert and public input into the design process," Genter said.
"For example, unlike alcohol breath tests, drug tests can only detect the presence of drugs or medication. They cannot test if a driver is impaired."
Nash said last year 71 people were killed in crashes where a driver was found to have drugs or medication in their system which may have impaired their driving, compared to 109 deaths linked to alcohol.
"We need to do more to stop dangerous drivers getting behind the wheel and enforcement on our roads is a key part of this."
The Government is looking for feedback on:
- 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.
- How an offence for drug driving should be dealt with by police.
But the document highlights how developing a new framework for drug-impaired driving in New Zealand "will require balancing a number of, sometimes conflicting, objectives".
That includes abiding by New Zealand's National Drug Policy 2015-2020 which regards drug use as a health and social issue and emphasises a health-based approach.
It's reflected in the Government's proposed drug law reforms that would allow discretion for police to prosecute for possession and use of drugs, and require them to take a therapeutic approach to drug users.
The document says penalties around drug-impaired driving "should be considered in the context of the Government's overall objective of addressing the health needs of individuals who harm themselves by using drugs".
It also notes how the New Zealand Bill of Rights Act 1990 guarantees the right to be secure against unreasonable search or seizure (section 21) and not to be arbitrarily arrested or detained (section 22).
The conflicting objective would be that taking a sample of bodily fluid would constitute a search for the purposes of section 21 - but the Attorney-General has ruled that roadside oral fluid testing would breach the Bill of Rights Act.
The document says Parliament could "decide to legislate in a manner inconsistent with the Bill of Rights Act, if it considers a matter to be an issue of public concern.''
For example, when compulsory breath testing for alcohol was introduced, the Government decided that the resulting limitations on driver's rights and freedoms were justified in order to address the harm of drunk driving.
The Attorney-General has suggested the method of using oral fluid testing as a screening tool, but blood testing as evidence of an offence of drug-impaired driving.
Roadside drug testing of drivers is currently only used on drivers suspected of being impaired by drugs or other substances, while blood testing is carried out on drivers hospitalised following a crash.
Why do we need drug-driver testing?
National leader Simon Bridges has criticised the Government for not acting quick enough on improving drug-driver testing.
He said earlier this week the document was received by the Government in December 2017, "but 17 months later it has still not been released".
"National wants a proper roadside drug testing regime in place as soon as possible and before any of the Government's law changes liberalising access to drugs takes effect."
The Government has announced that New Zealanders will vote on legislation to legalise recreational cannabis at the 2020 election.
With cannabis legalised, there would be a strong need for a robust drug-driver testing system, since the negative effects of high doses of cannabis on driving performance are well documented.
The document says while research shows drugs have the potential to negatively affect driving ability, "we cannot say for certain that the presence of a particular drug or substance in a driver's blood means they are impaired".
That's why Genter said a "considered approach to developing enhanced drug driver testing will mean we can develop a robust testing system that's grounded in evidence and best practice".
The document says this could be achieved through new technologies such as blood spot analysis and pupillometry (the measurement of pupil size). But those technologies are not sufficiently developed for use now.
Overall, the Government will have a lot to consider, including how drug-driver testing will be carried out, under what circumstances they should be tested, and how to decide which drugs to test for.
Consultation will take place over the next six weeks, concluding on Friday 28 June. The Government will be looking to confirm its options at the end of this year.