Police conducting roadside testing on the way to MardiGrass 2019 near Goolmangar.
Police conducting roadside testing on the way to MardiGrass 2019 near Goolmangar. Marc Stapelberg

'CRUEL' ADVICE: Drug-driving site slammed as 'misleading'

THE State Government has been criticised for giving "misleading" and "cruel" drug-driving advice to motorists.

Magistrate David Heilpern yesterday handed down his reasons for finding Robert Nicholas Ambros Collier, 34, not guilty of driving with an illicit drug present in his system.

The Rappville man was working for a contractor to Nimbin Mardigrass festival when he undertook a roadside drug test on Nimbin Rd at Goolmangar about 12 noon on May 5 last year.

He returned a positive reading for THC and was charged.

There was no suggestion he was impaired by the drug, which would constitute a separate charge of driving under the influence.

He fought this charge on the basis of a mistake of fact, citing the government advice.

In his hearing, Mr Collier was open about having consumed cannabis, but said this was 43 hours prior, on May 3.

Remembering his work responsibilities and aware Mardi Grass would have significant police presence, he researched the laws and found the NSW Government's Centre for Road Safety website.

This website advised cannabis can "typically be detected in saliva ... for up to 12 hours after use".

Confident he was neither affected by the drug nor likely to have a detectable level in his system, he got behind the wheel on May 5.

In his hearing, the police prosecutor argued it was "not reasonable" for Mr Collier to form that belief based on the Centre for Road Safety advice.

Mr Heilpern said he disagreed with this when he handed down his judgment before Lismore Local Court.

In a previous case, he said the drug-driving testing regime was "characterised by mystery and uncertainty by design" and was critical of the 12-hour advice.

"This case yet again illustrates the absurdity and inaccuracy of that advice," he said.

"(It) is nothing more than a cruel underestimation that gives people specious information, lulls them into a false sense of security, and leads to greater levels of detection, criminalisation and loss of licence.

"It is reminiscent of the obsolete method of calculating a safe blood alcohol level by only consuming two drinks in the first hour and one every hour after that.

"I still hear this as a mantra from (drink-driving) defendants on a regular basis."

Mr Heilpern said if the NSW Centre for Road Safety "believes its own reasoning" that "driving with minute detectable levels of cannabis exponentially below affectation levels significantly increases the risk of death or serious injury on the roads", it would make sense to increase the timeline within which its advice suggested positive roadside drug tests were likely.

"If correlation equates to causation then what could be the harm in such a change?" Mr Heilpern said.

"The consequences of this misleading advice, particularly in country areas, can be devastating.

"Loss of licence is often accompanied by termination of employment, loss of housing and loss and relationship breakdown.

"I urge the NSW Centre for Road Safety to change their website advice to reflect the reality that the science is uncertain and that THC may remain detectable for many days after use."

He said medicinal use of cannabis was "becoming more widespread" and many of these patients were "reliant on their licence" but did not want to break the law.

"The new legislative regime results in immediate and automatic loss of licence with only limited redress to the courts," Mr Heilpern said.

"Therefore, it is essential that government agencies provide accurate and fair advice. In my opinion, the current advice is neither fair nor accurate."

In his submissions during the hearing, defence solicitor Steve Bolt said it was significant that the website was "the only information provided by the government to the community about the operation of random roadside testing".

"In the context of a law that criminalises driving with any presence of the relevant drug, and the fact that traces of any drug remain in a human body for some period after consumption, it is completely reasonable and unremarkable that a person would put weight on the information the website contains," Mr Bolt said.

Mr Bolt told The Northern Star he was pleased with the not guilty verdict.

He said it was "important" the court heard "strong comments" about the "unreliable, inaccurate" information that had been issued by the state.

He said charges like Mr Collier's far outweighed those that involved allegations of impairment.

The Centre for Road Safety has been approached for comment.