Drug driving case gives pot users a whiff of defence
A DRUG driving case at Lismore Local Court has opened a “floodgate” line of defence for cannabis users.
On Monday, Magistrate David Heilpern found Lismore man Joseph Carrall not guilty of a drug driving offence on the grounds the defendant had “honest and reasonable belief” he did not have a detectable quantity of cannabis in his system.
Defence lawyer Steve Bolt said afterwards: “Mr Carrall was told on a previous occasion by an officer conducting a saliva test that if he waited a week there would be no cannabis detectable in his system. The second time he was tested, the test proved positive but that was nine days after he said he had last consumed cannabis.
“The court accepted that it was a truthful account and found that in that situation, it was a reasonable proposition for him to rely on what the officer had told him previously – that a week would be an acceptable period of time (to wait before driving).”
The police prosecutor submitted that should the defendant be found not guilty, floodgates might be opened and lessen the deterrent effect of the New South Wales legislation on consumption of cannabis.
The prosecution said that if the defence was successful, people who chose to use cannabis would not have to “run the gauntlet” whereby they wouldn’t know if they were detectable.
In his judgement, Mr Heilpern said: “That gauntlet is apparently part of the mystery and uncertainty-by-design of the current testing regime.
“As for the floodgates, my duty is to apply the law as I see it in a given case and not to determine that application based upon what could happen in other cases.”
Mr Heilpern also referred to “the dearth of information as to how long the wait has to be before the presence cannot be detected”.
However, the case is not a loophole for all drug drivers.
“It’s not just enough for a person to have a belief that they would not test positive, there would have to be some basis of that belief,” Mr Bolt said.
“There must be a time period, where the cannabis is no longer present. But nobody really knows what that time that is.”
However, according to the NSW Centre for Road Safety, cannabis can be detected in saliva up to 12 hours after use.