1 Cabinet paper Reducing Road Trauma Random Drug Testing For Drivers.pdf

Office of the Associate Minister of Transport

Chair
Cabinet Economic Growth and Infrastructure Committee
REDUCING ROAD TRAUMA: RANDOM DRUG TESTING
FOR DRIVERS
Proposal
1.  I propose New Zealand introduces a random drug testing regime for drivers. The new regime
would run in parallel with the current drug-driving impairment regime.
2.  This paper also seeks approval to issue drafting instructions to amend the Land Transport Act
1998 (the Act) to implement the random drug-driving testing regime. Drafting instructions will also
extend the list of qualifying drugs for the current impairment-based offence.
Executive summary
Background
3.  The road toll for the 12 months to 11 August 2016 is 328 which is 12 higher than for the same
period last year. While it is still too early to determine the factors that may have contributed to the
increase, it emphasises the need for a continued focus on interventions that are likely to reduce
road trauma.
4.  On 11 April 2016, Cabinet considered a proposal to introduce random drug testing of drivers.
Cabinet deferred consideration of the paper and, instead, it invited the Minister of Health, in
consultation with the Minister of Justice and other relevant portfolio Ministers, to bring an item to
the Cabinet Strategy Committee on the issues concerning illegal drug use. The Associate
Minister of Health, Hon Peter Dunne, took an item on New Zealand’s National Drug Policy to the
Cabinet Strategy Committee on 27 June 2016 [STR-16-MIN-0002 refers]. The purpose of this
proposed policy to reduce the harm caused by drug-driving. The Ministry of Health view is that
the proposal appears to be inconsistent with New Zealand's National Drug Policy 2015 to 2020.
The National Drug Policy emphasises a proportionate response to minimise drug-related harm. A
driver who returns a positive test for the presence of drugs does not necessarily represent a risk
to road safety.
5.  Given that Cabinet Strategy Committee meeting has taken place, I am bringing the random drug
testing proposal back to Cabinet to determine whether it wishes to proceed with the proposal.
Random drug testing of drivers to address New Zealand’s drug-driving problem
6.  The Ministry of Transport (the Ministry) reviewed the extent of New Zealand’s drug-driving
problem. This review also investigated whether the current drug-driving enforcement model
should remain as the preferred model.
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7.  The review estimated that the drug-driving problem has a social cost of between $96.8 million
and $731.4 million per annum, with a central estimate of $250.5 million. The central estimate
translates to approximately 23 deaths, 112 serious injuries, and 304 minor injuries per year. The
social cost was estimated using several sources, such as New Zealand crash data, studies of
New Zealand deceased drivers and international research.
8.  The current drug-driving regime relies on good cause to suspect a driver has taken a drug or
drugs. The Ministry’s review identified weaknesses with this regime. To help reduce drug-driving,
I recommend random drug-driving testing be introduced using roadside screening devices. The
Police would not need to establish good cause to suspect a driver has taken drugs before testing
them for drugs. This would allow a much larger number of drug tests to be conducted, which
would deter drug-driving. Random drug testing would be an additional tool to combat drug-
driving because the current drug-driving testing regime would continue in parallel.
9.  Under the random drug testing process, drivers would be stopped by the Police and undergo an
oral fluid screening test. If that test were positive, a second oral fluid screening test would be
given. If the second test were positive, an evidential blood test would be taken. The presence of
drugs in the blood sample would be sufficient evidence for an offence. Each oral fluid test would
take between three and five minutes to complete. If the rate of improvement in oral screening
devices continues, there may be quicker devices available by the time Police start random
testing.
10.  If a Police officer stops a vehicle, and there is evidence of drug use (for example, utensils/drugs)
and there is good cause, then a search can be undertaken using Search and Surveillance
legislation. However, the officer also has the option of requiring the driver to undergo a
Compulsory Impairment Test under the Act. The driver cannot be subjected to both the Act and
Misuse of Drugs Act 1975.
11.  Random drug testing would test for drugs specified by Order in Council, such as
methamphetamine (“P”), THC (the active ingredient in cannabis) and MDMA (ecstasy). THC and
methamphetamine are the two most commonly detected illicit drugs in blood samples taken from
drugged-drivers, and are of greatest concern to road safety. An oral fluid screening process
could detect the active component of THC for up to 5 hours after cannabis had been smoked.
New Zealand Environmental Science and Research (ESR) advises that it is highly unlikely that a
person exposed to second-hand smoke due to passive ingestion will record a positive result
following a roadside oral fluid screening test.
Assessment of random drug testing
12.  Several potential enforcement regimes were assessed. These regimes included the current
regime, three regimes based on good cause to suspect a driver has used a drug or drugs, and
two random testing regimes.
13.  A presence-based random drug-driving testing regime offered the highest benefit cost ratio
(BCR).
Infringement penalty
14.  If a presence-based regime is introduced, there is a question whether drivers found to be driving
with drugs in their system should receive infringement penalties or criminal penalties. Criminal
penalties would involve a driver being prosecuted in court and facing serious penalties similar to
those that apply to serious drink-driving offences. An infringement offence does not result in a
criminal conviction.
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15.  I propose an infringement offence. It balances the need for a strong sanction with the need to
acknowledge that the offence will be presence-based and impairment will not be demonstrated.
It is also the most cost effective option.
Implementation
16.  Once fully implemented, the random drug testing with an infringement offence would cost around
$6.95 million per annum. I would expect random drug testing to begin on 1 July 2017 at the
earliest if enabling legislation were enacted by the end of 2016.
17.  The delivery of random drug testing would be an operational decision for the Police. Some
random drug testing may be delivered alongside alcohol check points. The Police need to retain
flexibility to adapt the enforcement model to address any new drug-driving risks that emerge.
Bill of Rights issues
18.  Introducing a random, presence-based regime may be inconsistent with the New Zealand Bill of
Rights Act 1990 (Bill of Rights Act). For example, it is likely to limit several rights affirmed and
protected by the Bill of Rights Act, in particular, the rights to be secure against unreasonable
search and seizure (section 21), not to be arbitrarily arrested or detained (section 22), and to be
presumed innocent until proven guilty (section 25(c)). The Attorney-General will undertake a final
assessment of the consistency of the proposals with the Bill of Rights Act once a Bill has been
drafted.
Background
19.  The Government has previously considered the effectiveness of the drug-driving enforcement
regime, and has received several reports on drug-driving (for example, EGI Min (12) 7/2 and EGI
Min (10) 4/5 refer).
20.  The Ministry undertook a further review recently, to identify the extent of the drug-driving problem
and determine whether the current drug-driving enforcement model should remain as the
Government’s preferred model. The drug-driving review originates from the Safer Journeys
Action Plan 2013-15, which includes investigating opportunities to strengthen the existing drug-
driving enforcement model.
21.  The Ministry reported on the findings of the review to the Associate Minister of Transport on
31 July 2015. The review recommended changes to the drug-driving enforcement regime to help
minimise the harm resulting from drug-driving.
22.  On 11 April 2016, Cabinet considered an earlier version on this paper and deferred consideration
of the paper. Instead, it invited the Minister of Health, in consultation with the Minister of Justice
and other relevant portfolio Ministers, to bring an item to the Cabinet Strategy Committee on the
issues concerning illegal drug use. The Associate Minister of Health, Hon Peter Dunne, took an
item on New Zealand’s National Drug Policy to the Cabinet Strategy Committee on 27 June 2016
[STR-16-MIN-0002 refers]. Given the Cabinet Strategy Committee meeting has taken place, I am
bringing the random drug testing proposal back to Cabinet to determine whether it wishes to
proceed with the proposal.
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Current drug-driving problem
23.  The Ministry estimates that drug-driving has a social cost between $96.8 million and $731.4
million per annum, with a central estimate of $250.5 million. The central estimate translates to
approximately 23 deaths, 112 serious injuries, and 304 minor injuries per year. In comparison, in
2014, there were 70 alcohol-related deaths.
24.  Specific data on drug-driving is limited, as studies do not clearly show the extent of the issue.
Instead, the Ministry estimated the size of the drug-driving problem using several data sources,
including New Zealand crash data, which has been compiled in a cost benefit analysis. While the
cost benefit analysis is subject to a range of unknowns and uncertainties, it has used best
practice methods to provide a more robust picture of the likely range of benefits and costs of
various regimes. Under current operational practices and data collection methods, it is not
possible to analyse further the extent of the drug-driving problem and its associated harms. The
costs and ethical issues associated with collecting the types and volume of data needed to
realise more fully the extent of the drug-driving problem, mean that this is not possible.
25.  Three data sources were used to estimate the scale of the drug-driving problem: data from New
Zealand’s Crash Analysis System (CAS) that includes all traffic crash data reported by the
Police, data from the United Kingdom, and a 2010 ESR study of drivers killed in road crashes.
26.  Unlike alcohol, there is no comprehensive data showing the relationship between the dosages of
various drugs, the level of impairment and crash risk. The World Health Organisation notes a
meta-analysis that compiled information from 66 studies showed an increase in the risk of
crashes for 11 different drugs1. However, it is not possible to disaggregate the social cost and
attribute it to particular drugs and dosages, when taken on their own or in combination with
others.
Empirical evidence of drug-driving in New Zealand
27.  CAS data shows the number of fatal crashes occurring where a driver has consumed drugs.
Although the numbers are small and subject to fluctuations, Figure 1 below outlines that the
number of fatal crashes occurring between 1990 and 2013 where drivers have consumed drugs
is now higher than in the 1990s.
Figure 1 – Fatal crashes with drugs (or combined with alcohol) 1990-2013


1 Global Status Report on Road Safety 2015; World Health Organization: p.40
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28.  An ESR study of at-fault deceased drivers found that of 1,046 deceased driver blood samples
analysed, 500 (48 percent) of the deceased drivers had alcohol or other drugs in their blood that
may have impaired their ability to drive safely. Of the 500 drivers, 92 (18 percent) had used
cannabis alone, 142 (28 percent) had used a combination of alcohol and cannabis, and 127 (25
percent) had used some other combination of drugs. Another ESR study of blood samples taken
from 1,999 drivers who had an evidential blood sample taken as part of the alcohol testing
process (but had not been injured in a crash), were screened for evidence of the use of a limited
range of other drugs. The analysis found that 35 percent had used cannabis as well as alcohol,
and 2 percent had used alcohol and some other drug.
29.  There are several studies pointing to the prevalence of the use of certain drugs generally and in
driving. The Ministry of Health’s 2007/08 New Zealand Alcohol and Drug Use survey found the
most commonly used recreational drugs in the 12 months before the survey were cannabis (14.6
percent), BZP party pills (5.6 percent), MDMA (2.6 percent), and amphetamines (2.1 percent). In
that year, buying BZP party pills was legal, so the number of people using BZP has likely
dropped since then.
30.  In 2014, the Ministry introduced a new question about driving while affected by drugs with or
without alcohol, to the Ministry’s Public Attitudes to Road Safety survey. Nine percent of
participants said they had driven while affected by prescription or pharmacy drugs, including two
percent combined with alcohol. Four percent said they had driven while affected by other drugs
(whether legal or not), including two percent combined with alcohol.
31.  The Ministry of Health’s Cannabis Use 2012/13: New Zealand Health survey, found that 11
percent of adults reported using cannabis in the 12 months before the survey. Of this 11 percent,
36 percent of cannabis users reported driving under the influence of cannabis in the last 12
months. This equates to around 133,000 adults. Men were 1.5 times more likely than women to
report they had driven under the influence of cannabis.
New Zealand’s current approach to drug-driving enforcement is based on non-random testing
for impairment
32.  The current drug-driving enforcement regime was introduced in 2009. It is not a random testing
regime. A Police officer must have good cause to suspect a driver has taken drugs before that
driver can be tested. Good cause may be formed from a driver’s manner of driving, or their
demeanour when they are stopped and spoken to by Police.
33.  If good cause exists, the officer can require the driver to undergo a Compulsory Impairment Test
(CIT). A CIT is a behavioural test designed to assess impairment due to drug use. A trained
Police officer carries out the test, which comprises eye, walk and turn, and one-leg-stand
assessments. If a driver’s performance on this test is unsatisfactory, a Police officer can require
the driver to undergo a blood test for the presence of at least one qualifying drug.
34.  Police officers need special training to be able to conduct a CIT. The CIT process can be quite
demanding on Police resources, taking on average 52 minutes to complete. This time is inclusive
of travel to and from a Police station. For safety reasons, a CIT cannot be done by the roadside,
so drivers are usually taken to a Police station to undergo the test.
35.  Section 57A of the Act makes it an offence to drive while impaired, and with evidence in the
bloodstream of a qualifying drug. A conviction for this offence depends on both an unsatisfactory
performance on a CIT and the subsequent blood test showing the presence of at least one
qualifying drug.
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36.  Another offence exists, under Section 58(1)(b) of the Act that can be applied if a driver is
hospitalised due to a crash. If a driver has a blood test taken in a hospital that shows the
presence of a Class A2 drug (such as methamphetamine), they can be prosecuted. A CIT is not
needed.
37.  A high proportion (90 percent) of blood samples taken after an unsatisfactory CIT test positive for
the presence of a qualifying drug or drugs. From November 2009 to December 2013, 1,004
blood tests were taken, of which 903 tested positive for qualifying drugs. Data on the overall
number of CITs undertaken is not collected.
New Zealand’s current drug-driving regime has some weaknesses
38.  Non-random testing is positive from a human rights perspective because a Police officer must
have good cause to suspect the consumption of a drug. Police officers cannot detain drivers who
are not yet suspected of having committed an offence. This carries a reduced risk of subjecting
innocent drivers to unnecessary detention and testing.
39.  When Police are able to find good cause to suspect and can apply the CIT, this regime is
effective in removing those visibly drug-impaired drivers from the road. However, the Police find
the current regime challenging in two respects:
a.  Police officers must establish good cause to suspect that a driver is operating a vehicle
after consuming a drug
b.  providing a sufficient number of officers who are suitably qualified to administer the CIT.
40.  These factors mean that both the perceived and actual risk of detection is unlikely to be
maximised.
41.  Therefore, the drug-driving enforcement regime does not create the conditions for general
deterrence as compared to random breath testing for alcohol. General deterrence relies on
highly visible Police enforcement and perceived likelihood of being caught, as well as the
consequences that follow for a drugged driver. Random breath testing has been found to be very
effective in deterring and therefore reducing drink-driving.
Practicalities of random drug-driving testing
42.  Random drug testing of drivers is where a Police officer can stop any driver who is driving a
motor vehicle on a public road and drug test them, without first needing good cause to suspect
the driver has taken drugs. New Zealand already uses a random alcohol-testing regime known
as Compulsory Breath Testing (CBT).
43.  If a Police officer does not need to make a judgement of good cause to suspect the use of a
drug, then they need an alternative way to determine who can be detained for further evidential
testing.
44.  While random testing has been used for drink-driving enforcement for many years, cost and
practicality is a major issue for random drug testing. Even if random testing was allowed under
legislation, selecting drivers randomly and requiring them to undergo a CIT would be impractical
due to the length of time a driver would be detained while being tested. On average, this is
around 52 minutes, including travel time to a Police station.

2 Class A drugs are set out in Schedule 1 of the Misuse of Drugs Act 1975.
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45.  A device that screens a driver’s oral fluid is the most practical and least invasive roadside drug
screening method available. Oral fluid screening devices are used in other countries, but do
have limitations.
46.  A range of devices is available which vary in the number of drugs they can test for, how the
sample is provided, and the time the test takes. These devices work by detecting the presence of
a drug in an oral fluid sample obtained from a driver by swiping the top of their tongue against a
test pad on the device. Drug screening devices currently take between three and five minutes to
produce a test result, which is longer than the time taken to administer a passive breath alcohol
test, which takes only a few seconds.
47.  The number of drugs that can be tested for is currently limited. The devices used by the
Australian state of Victoria test for methamphetamine, THC (the active ingredient in cannabis)
and MDMA (ecstasy) only. Random roadside drug testing can detect THC several hours after its
use (around five hours). The exact time can vary, depending on the amount and potency of the
cannabis used and the individual’s metabolism. Inactive THC residue in the body of a driver from
cannabis use in previous days or weeks will not be detected by the oral fluid screening tests.
ESR advises that it is highly unlikely that a person exposed to second-hand cannabis smoke due
to passive ingestion will record a positive result following a roadside oral fluid screening test.
48.  ESR has indicated that blood samples taken from impaired drivers, who do not satisfactorily
perform the CIT, show that cannabis and methamphetamine are the drugs most commonly used.
While drivers sometimes report taking ecstasy, blood samples indicate that drivers think they
have taken ecstasy, when actually taking a different type of drug.
49.  Drug screening tests are much more costly than drink-driving screening tests, costing around
$35 - $44 per test. There are oral fluid screening devices that test for a wider range of drugs, but
they are more expensive and the time to test a driver increases. The devices used in the
Australian state of Victoria are the basis for the cost benefit analysis underpinning this paper, as
the costs are well known. However, cheaper devices may be available by the time random drug
testing is introduced.
50.  While the accuracy of oral fluid screening devices has improved over recent years, the devices
currently available can produce false positive results, (i.e. when the device incorrectly indicates
the presence of a drug). The false positive rate of the proposed regime will be ascertained if the
regime is implemented and the appropriate data recorded. The cost benefit analysis completed
expects a total false positive rate of 1.5 percent, which includes all false positive results that
would occur along the testing process. Like other outputs of the cost benefit analysis, the
estimated total false positive rate is based on many assumptions that cannot be easily validated.
51.  The best method for mitigating the risk of false positives is for a second oral fluid screening test
to be undertaken at the roadside followed by a blood test for evidential purposes. Blood tests are
conclusive and provide no false positives.
52.  Oral fluid drug screening technology is developing, which could have positive impacts on the
costs of devices, their reliability and testing speed, and the range of drugs that can be identified.
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Random testing regime options
Two random drug-driving testing regimes were assessed by the Ministry
53.  Two random drug-driving testing regimes were considered during the Ministry’s review. These
were compared against several non-random options, for example, replacing the CIT with an oral
fluid screening test. These options are described more fully in the accompanying Regulatory
Impact Statement. The non-random options were discounted, as they are unlikely to achieve the
safety benefits associated with general deterrence effects of random testing. These non-random
options were also not cost effective.
54.  The two random testing regimes considered by the Ministry are outlined below. Both regimes
assume that the Police would retain the power to conduct CITs, if they had good cause to
suspect, as drivers may be impaired by drugs that cannot be tested for using an oral fluid
screening device.
Presence-based random testing regime (preferred approach)
55.  The preferred regime in this paper is largely based on the approach used in the Australian State
of Victoria since 2004, and would introduce a random oral fluid screening. Under this approach,
there would be a roadside oral fluid screening test, followed by a second oral fluid screening test
if the driver fails the first screening test. If the driver passes the second screening test, they will
be free to go. However, if the driver fails the second screening test, then a blood specimen would
be taken and analysed for the presence of particular drugs.
56.  The following diagram outlines the process that would be followed under this regime.

57.  The diagram above assumes that a Police officer would first undertake an alcohol screening test
before undertaking an oral fluid test for drugs. In an operational setting, this is the most likely
path that would be followed. However, a Police officer would have the ability to require the driver
to undertake an oral fluid test without first having taken an alcohol breath test.
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58.  I propose that the drugs that would be tested for be specified by Order in Council. This preserves
flexibility to adapt to changing patterns of drug use and devices that can test for a wider range of
drugs, while providing Cabinet oversight on the selection of the drugs to be tested for. Based on
current knowledge, it is likely that the three drugs that would be initially specified under this
regime would be methamphetamine, MDMA (ecstasy) or THC (the active ingredient of cannabis).
59.  Random drug testing would not require the Police to prove impairment. Unlike alcohol, it is
difficult to attribute the use or amount of a drug in a person’s body to whether a driver has
impaired fitness to drive. Drugs affect people differently and as such this regime would operate a
zero tolerance policy. The presence of any specified drug detected in the evidential blood
analysis would be sufficient proof of an offence. However, this approach is a shift from the status
quo enforcement regime, which is based on proving a person is impaired, and has drugs present
in their blood. This could lead to drivers who do not present a road safety risk being sanctioned.
60.  This preferred regime offered the highest BCR of the options considered.
Impairment-based random testing regime
61.  As an alternative to the presence-based approach, an impairment-based random drug-driving
testing regime was considered. This would involve an oral fluid roadside screening test being
administered randomly to drivers, followed by a CIT if the driver failed the oral fluid screening
test. If the driver did not satisfactorily perform the CIT, a blood specimen would be taken for
analysis.
62.  The following diagram outlines how the process would be followed under this regime.

63.  Due to it being difficult to link a drug in a person’s body with their fitness to drive, basing a
random testing regime on impairment coupled with presence would be desirable, if this can be
done operationally. This is because it combines the benefits of a random testing regime with the
benefits of the existing good cause to suspect, impairment-testing regime.
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Random presence-based drug-testing should be introduced
64.  Analysis of the two random testing regimes shows that both offer improved road safety
outcomes. However, the Police believes an impairment-based random drug-driving testing
regime would be operationally challenging, if not unfeasible. Because of this, on balance, I
propose a presence-based random drug-driving testing model be introduced, running in parallel
with the current impairment-based regime. This would allow a much larger number of drivers to
be drug tested than the current regime, and this would assist in deterring drug-driving.
65.  The New Zealand Automobile Association (AA) surveyed its members in 2009. This survey
found that 89 percent of the members surveyed supported introducing roadside saliva testing for
drugs. However, the survey did not explain the process that is involved with oral fluid drug-
screening tests nor the time it would take to screen a driver’s oral fluid for drugs. The AA advises
that this level of support remains consistent with a rolling survey that it conducts quarterly, where
members are asked if they support or oppose introducing saliva based drug testing to detect
drug-driving. In the last survey of around 900 members, 83.9 percent expressed support.
66.  Table One below outlines the strengths and weaknesses of the two random testing regimes.
Table One: Strengths and weaknesses of the two random drug-driving testing regimes

Presence-based random drug testing
Impairment-based random drug testing
regime (45,000 tests)
regime (45,000 tests)
Road safety
Estimated reduction of 10.8 drug-related
Estimated reduction of 10.8 drug-related
impact
fatalities per annum
fatalities per annum
Good impact on deterring drug-users
Good impact on deterring drug-users from
from drug-driving
drug-driving
BCR –
5.15 with an infringement offence
2.16
central
2.01 with a criminal offence
estimate
Cost for
$70 million over 10 years with and
$101 million over 10 years
45,000 tests
infringement offence, or $132.51 million
with a criminal offence
Operational
The Police supports this regime, due to:
The Police does not support this regime as it
acceptability
  the ability to deliver higher levels
believes there would be considerable
of testing across the general
operational risks, due to:
driving population, delivering
  the potential for first oral fluid
greater general deterrent value in
screening result to bias the
line with policy objectives
administration of the CIT
  the option to pursue impairment
  the time taken to process a driver to
offences through the current CIT
the point of having a blood sample
process
taken is expected to be at least one
  the time taken to process a driver
hour. Officers would be removed from
to the point of having a blood
the frontline during this time
sample taken is expected to be
  the concern regarding undue
around 15 minutes representing
detention due to the first oral fluid
less impact on motorists and
screening test returning an inaccurate
Police resources.
test result
  the Police not having sufficient
resources to deliver the higher level of
testing the proposal assumes,
therefore undermining the assumed
benefits of the BCR, which are based
on 45,000 tests per annum.
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Presence-based random drug testing
Impairment-based random drug testing
regime (45,000 tests)
regime (45,000 tests)
Impacts on
The regime would impact these sections
The regime would impact these sections of the
private
of the New Zealand Bill of Rights Act:
New Zealand Bill of Rights Act:
benefits and
  unreasonable search and seizure
  unreasonable search and seizure
freedoms
  arbitrary arrest or detainment
  arbitrary arrest or detainment
  the right to be presumed innocent
  the right to be presumed innocent until
until proved guilty according to
proved guilty according to law.
law.
The Ministry of Justice is particularly
The Ministry of Justice is particularly
concerned with this regime, in relation to
concerned with this regime in relation to
arbitrary detainment, as a false positive on oral
the right to be presumed innocent, as
fluid screening test could lead to a driver being
presence of a drug would not necessarily
detained for an unduly long amount of time (an
indicate impairment.
average CIT takes 52 minutes).
Public
There appears to be a high level of
The public are likely to be largely in favour of
acceptability  support for random testing. However,
this policy. This may be reliant on the severity
there may be some risks due to the
of any New Zealand Bill of Rights Act issues.
presence of drugs being tested for, rather
than impairment. This may be reliant on
the severity of any New Zealand Bill of
Rights Act issues.
Impacts on
The impact on the Justice sector will vary
This regime would result in an increase in
Justice
depending on the type of offence created.
drivers processed by the Justice sector.
sector
If a criminal offence is used, this regime
would result in a larger increase in drivers
processed by the Justice sector. This is
because there may be drivers identified
who have drugs in their system but who
are not impaired.
If an infringement offence is used, then
the impact on the Justice sector would be
much less because there are significantly
lower administrative costs compared to a
criminal prosecution.

Infringement penalties or criminal penalties?
67.  If a presence-based regime is introduced, there is a question whether drivers found to be driving
with drugs in their system should receive an infringement penalty or a criminal penalty. Criminal
penalties would involve a driver being prosecuted in court and facing serious penalties similar to
those that apply to the current drug-driving impairment offences. An infringement does not result
in a criminal conviction.
68.  I propose that offences detected through offenders identified through the current impairment
regime should continue to receive criminal penalties. Downgrading the current impairment
criminal penalties to infringement penalties would undermine the message that drug impaired
driving is unacceptable.
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Advantages and disadvantages of infringement offence
69.  Infringement penalties would result in much lower costs to the Justice sector, as infringements
do not generally result in a court hearing unless the driver requests a defended hearing.
However, introducing an infringement regime could lead to a risk of drug-driving being perceived
as a minor offence. This would depend on the infringement penalties applied. An infringement
fee coupled with demerit points could offer a reasonable deterrent, commensurate with the
nature of the offence and the social harm caused. Infringement penalties would also not put as
much pressure on the Justice sector as criminal-based sanctions. Infringements also offer a
swifter way of sanctioning drivers than a court prosecution.
70.  Table Two outlines the infringement penalties that apply for low-level drink drivers under the
random alcohol testing regime. Criminal penalties apply for when drivers have higher breath
alcohol readings than this.
Table Two: Drink-driving infringement offences and penalties
Offence
Penalty
Drivers under the age of 20 with between 0 and 150
$200 infringement fee and 50 demerit points
micrograms (mcg) of alcohol per litre of breath
Drivers aged 20 and over with breath alcohol levels
$200 infringement fee and 50 demerit points
between 250 and 400mcg of alcohol per litre of breath

71.  Because driver licences are suspended for three months once 100 or more demerit points have
been accumulated within a 2-year period, 50 demerit points is a strong deterrent. If Cabinet
agrees to implement an infringement offence for random drug testing, I propose implementing
the same infringement penalty as outlined in Table Two above for all drivers who fail an
evidential blood analysis. There is a risk that this level of penalty may be considered too severe
because, unlike low level alcohol offences, there is no correlation with impairment.
72.  Operating the random oral fluid screening regime and the impairment regime together could
produce quite different legal consequences for a driver. These consequences would depend on
what testing method the Police officer chose to use. For example, a driver subjected to the
random oral fluid test could receive an infringement offence. However, they could be charged
with a criminal offence if they were tested under the impairment regime although, there is a
higher evidentiary threshold for the impairment regime. This potential inconsistency in outcomes
is difficult to reconcile because it is desirable to retain the impairment regime alongside the
random testing regime.
73.  A possible mitigation to this potential inconsistency is to allow the Police, under certain
conditions, to switch from the random testing process to the impairment testing process. A switch
could be made, if after starting the random testing process, a Police officer formed good cause to
suspect a driver had used drugs. For example, a driver who passed the first oral fluid screening
test but admitted to the Police they had taken drugs or they appeared to be under the influence
of drugs. This would allow a driver to face the more serious criminal penalty if they were impaired
following the unsatisfactory completion of a compulsory impairment test and subsequent analysis
of a blood sample, regardless of which testing process the officer started with. Also, the risk of
an impaired driver avoiding a sanction would be reduced when they had used a drug that the
oral fluid screening device could not detect.
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74.  A switch to the impairment testing process should not be permitted once the driver has failed two
oral fluid screening tests. In addition, a Police officer would not be able to switch back to the oral
fluid screening process. This would avoid the random drug testing process being regarded as
capricious or unreasonable.
Advantages and disadvantages of criminal offence
75.  Imposing a criminal penalty for the random drug testing offence would mitigate the concern of
two individuals being treated differently under the law, depending on whether they went through
the random testing regime, or the impairment regime.
76.  Criminal sanctions would act as a strong deterrent to drug-driving. However, a presence-based
regime would not indicate whether a driver was impaired, and as such would not show
conclusively whether that driver was a road safety risk.
77.  The current drug-driving laws are focussed on harm caused by driving whilst impaired by a drug.
Without conclusive evidence that the presence of a drug has affected a person’s ability to drive,
the imposition of a criminal sanction may be viewed as unjustified. Therefore, the imposition of
an infringement rather than a criminal offence appears more appropriate where the focus is
purely on the presence of drugs.
78.  A disadvantage of criminal-based sanctions is the workload and cost they will place on the court
system. Based on the Police screening 45,000 drivers a year, the Ministry of Justice has
estimated the cost to be around $930,000 per year. There will also be cost pressure on the
Department of Corrections of $6.22 million per year, for their management of sentences.
79.  There would be no specific offence for failing or refusing to undergo an oral fluid screening test.
The consequence would be that the process moves to the next stage (i.e. to the second oral fluid
test, and if that is also failed or refused, to a blood test). Failing or refusing a blood test is
currently an offence. This is similar to the process that currently applies if a person fails or
refuses to undergo a breath screening test, or an evidential breath or blood test.
Preferred approach to offences
80.  After weighing the advantages and disadvantages, I recommend a new infringement offence be
created. This balances the need for a strong sanction with the need to acknowledge that it will be
a presence-based offence and impairment will not be demonstrated. It is also the most cost
effective option.
81.  I suggest that the Ministry, along with Justice sector agencies, be directed to review the
adequacy of the penalties in deterring offending. This review would be included in a broader
review of the new regime’s efficacy and impacts on individuals, and whether the regime reflects
international best practice, which would take place once three years of data about the regime is
available.
Drivers hospitalised by a crash who show the presence of drugs
82.  If a driver is taken to hospital, or a doctor’s surgery because of an accident or incident involving a
motor vehicle, I propose that Police officers be able to require the person to provide a blood
sample. The sample would be tested for the presence of a specified drug. If a specified drug
were detected, the driver would have committed an offence. The nature of this offence
(infringement) will be equivalent to that proposed for  the offence under the roadside oral fluid
screening regime.
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83.  This approach will ensure that drivers, who are involved in a crash and cannot undergo the oral
fluid screening as a result of any injuries received, can be sanctioned. If this offence is an
infringement offence, there will be an inconsistency with an existing offence under section 58 of
the Act.
84.  Under section 58 of the Act, it is currently a criminal offence if the person’s blood is taken in
hospital, or doctor’s surgery and contains evidence of a Class A drug3 (which is usually
methamphetamine). If the hospitalised driver tests positive for a Class A drug, they will continue
to be liable for the existing criminal offence. By comparison, a hospitalised driver whose blood
tested positive for THC, would liable for an infringement offence only.
Medical defence
85.  The Act currently allows a medical defence to a drug-driving prosecution. This defence applies in
cases where a court is satisfied that a person has consumed a qualifying drug in accordance
with a current and valid prescription written for them by a health practitioner, and have complied
with the instructions for using the drugs from a health practitioner or manufacturer of the drug. I
propose that a similar medical defence is provided for the new offence detected from roadside
oral fluid screening.
86.  This medical defence would not be available for illicit drugs that are not approved or prescribed
for legitimate treatment purposes. It is possible for people to be prescribed medicinal cannabis,
such as the Sativex mouth spray, for specified conditions if their medical specialist obtains the
appropriate approvals. In time, the Government may decide to extend the list of specified drugs
to include other controlled drugs (such as opiate-type drugs) that are available under prescription
for treatment purposes.
Implementation of random drug testing
Number and delivery of tests
87.  The proposed regime would be phased in over a three year period, culminating in 45,000
random oral fluid tests per year. I propose that 15,000 random drug tests be funded in the first
year, increasing to 30,000 tests in the second year and 45,000 tests in the third and subsequent
years.
88.  The proposed rollout of screening tests allows the Police to adjust to the new testing regime, and
make adjustments as necessary. The Police will determine the most efficient and effective
method of delivery for targeting drug-driving risk, allowing the method to adapt to address new
risks as they develop. Some drug-driving enforcement may be delivered alongside random
alcohol checkpoints.
Implementation date
89.  It may take some time to begin testing following enabling legislation being enacted. The Police
would need to develop their operational requirements, find a suitable oral fluid screening device
via a competitive tendering process, and have the new device approved for use. The Police
would also need to develop and implement a programme to train Police officers to use the
device. If the legislation were enacted by the end of December 2016, I would expect an
implementation date of 1 July 2017 at the earliest.

3 as specified in Schedule 1 of the Misuse of Drugs Act 1975
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Approval process for new devices
90.  The approval process for screening devices needs to be flexible enough to allow for new testing
equipment to be adopted if the equipment meets Police operational requirements. The Police
would be able to take advantage of new technology that improves the accuracy of results,
expands the range of drugs that can be tested for, and minimises delays to motorists.
91.  I propose that the Minister of Police approve the preferred device by Notice in the New Zealand
Gazette, after consulting with the Minister of Science, Minister of Justice and Minister of
Transport. The Police would need to determine and make provision for any additional operational
requirements.
Amendments to the definition of qualifying drug in the Land Transport Act
92.  Currently, under the Act, a person may not drive or attempt to drive a motor vehicle while
impaired, with that person’s blood containing evidence of a qualifying drug.
93.  The Act’s current definition of a qualifying drug includes controlled drugs specified in Schedule 1,
Schedule 2, and Part 1, 4, or 7 of Schedule 3 of the Misuse of Drugs Act (MODA),
benzodiazepine drugs in Part 5 of the MODA, and prescription medicines. This definition
currently excludes some drugs in Schedule 3 of the MODA that may impair drivers. There is no
justification, on road safety grounds, to exclude them.
94.  I propose that the definition of a qualifying drug be amended to include all of the drugs listed in
Schedule 3 of the MODA, except for Part 6. Amending the definition will add all drugs in Part 2
(such as codeine) and the remaining drugs in Part 5 of Schedule 3 of the MODA to the definition
of qualifying drug. This amendment will only relate to offences detected and prosecuted under
the current impairment-based regime and will not apply to the random oral fluid screening
regime.
95.  I also propose adding drugs in Part 3 of Schedule 3 of the MODA. Most are not used as
medicines in New Zealand, except for pholcodine, which is available in cough mixtures and can
be abused by opiate addicts. Part 6 of Schedule 3 relates to preparations and mixtures, and is
not relevant to a driving application. Appendix Two lists the drugs I propose adding to the
definition of qualifying drug.
96.  This will assist in future proofing the Act if any adjustments are made to Schedule 3 of the
MODA. The proposed amendment will not remove any of the drugs that are currently qualifying
drugs for the section 57A offence.
97.  I propose retaining the current legal defence in section 64(1A) of the Act that applies to drivers
who take a qualifying drug (including the additional drugs) for legitimate therapeutic purposes.
Currently, this defence is provided if the driver has a current and valid prescription for the drug
and is taking it in line with the health practitioner’s or manufacturer’s instructions.
New Zealand’s National Drug Policy
98.  The National Drug Policy’s goal is “To minimise alcohol or other drug-related harm, and promote
and protect health and wellbeing”, relates to random drug testing for drivers. Also applicable is
the framework’s objective of “reducing il ness and injury from alcohol and other drugs”.
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99.  Random drug testing seeks to improve road safety by reducing the potential harm caused from
drug-driving. In the Ministry of Health’s view, the proposal appears to be inconsistent with New
Zealand's National Drug Policy 2015 to 2020. The National Drug Policy emphasises a
proportionate response to minimise drug-related harm. A driver who returns a positive test for the
presence of drugs does not necessarily represent a risk to road safety.
Stakeholder engagement
100. The Ministry held a stakeholder workshop in May 2015. Attendees included a range of
government departments, treatment providers, university academics, and several interest groups
such as the AA and the NZ Drug Foundation. Thirty stakeholder groups were invited to this
workshop, and four provided written feedback on the proposals.
101. Stakeholders expressed a view that drug-driving affects all ages, and involves both prescription
and illicit drugs. The low number of drug tests being done under the current regime also
concerned them. Some stakeholders were concerned about presence-based testing, as the
mere presence of a drug or drugs in a specimen does not mean a person is impaired.
102. There was no consensus on the best way forward. Some stakeholders favoured adopting the
Victorian regime while others were opposed due to inconsistencies of this regime with the New
Zealand Bill of Rights Act.
103. The policies discussed in this Cabinet paper were developed in a joint working group, with the
NZ Transport Agency (Transport Agency), Ministry of Health, Ministry of Justice, Department of
Corrections, the Accident Compensation Corporation and the Police.
104. If Cabinet agrees to changes to the Act, there would be further public engagement at Select
Committee. As noted previously, surveys by the AA suggest good support for random drug
testing among its members.
Consultation
Minister of Transport
105. The matters covered in this paper are within my portfolio of responsibilities. I have consulted the
Minister of Transport on those matters and he agrees with the submission of the paper.
Departments and agencies consulted
106. The Police, the Ministry of Justice, the Department of Corrections, the Ministry of Health, the
Transport Agency and the Accident Compensation Corporation participated in the reference
group for the drug-driving review and provided feedback on the Ministry’s drug-driving review
paper as well as this Cabinet paper. Other departments consulted on this paper were the
Treasury, the Office of the Privacy Commissioner, Te Puni Kōkiri, the Ministry of Social
Development, and the Crown Law Office. The Department of the Prime Minister and Cabinet
was informed of this paper.
Comment from the Office of the Privacy Commissioner
107. The Office of the Privacy Commissioner states it recognises the societal harm the proposal
seeks to address. However, it is concerned the proposed testing regime would lead to arbitrary
detention and prosecution where there is no indication of impairment. It supports the concerns
raised by the Ministry of Justice regarding the potential impacts on personal freedoms the
proposal entails in terms of the New Zealand Bill of Rights Act.
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108. The Office of the Privacy Commissioner believes the proposed random approach and the
significant false positives likely to result from the roadside screening devices also raise concerns
in relation to principle 8 of the Privacy Act 1993. Section 8 requires agencies to take reasonable
steps to ensure information is accurate, relevant, and not misleading before use. There is
established evidence that alcohol impairs driving and the current drink-driving testing regime is
based on thresholds that reflect recognised levels at which alcohol impairs driving. However, an
empirical basis for the proposed presence-based drug-driving regime is not well established.
109. The Office of the Privacy Commissioner also stated that the paper proposes enabling legislation
with no statutory limits on scope. Given the proposed extension of qualifying drugs, it had
concerns in terms of the potential for expansion beyond the three drugs noted to encompass
more commonly prescribed prescription or over the counter medications, should testing
technology became available.
Comment from the Department of Corrections
110. The Department of Corrections supports the Ministry’s goal to reduce the harm caused by
impaired drug-drivers. Any costs to the Department that are significantly above the estimates in
the paper will not be able to be met within baseline funding.
Comment from the Ministry of Justice
111. The Ministry of Justice (MoJ) has contributed to the human rights implications statement below.
The MoJ agrees that reducing the harm of drug-impaired driving is an important objective and
supports that objective. However, it believes that the proposals as presented are a significant
intrusion on the values of personal dignity, liberty and privacy affirmed in the Bill of Rights Act.
As a result, the proposals risk inconsistency with the Bill of Rights Act. The proposals should be
carefully considered in light of the evidence available and whether alternative, more
proportionate, means of solving the problem are available.
Comment from the Treasury
112. Treasury acknowledges and supports the overall intention of the proposal is to improve safety for
road users but has concerns in relation to how this fits with the broader strategy to improve road
safety. An understanding of the broader strategy would support this proposal, in order to identify
the extent of the problem and relative priority of the introduction of random drug testing for
drivers.
113. Since this paper was initially considered by Cabinet, the focus of work has been on placing the
proposal within the broader context of the National Drug Policy 2015 to 2020. While it is helpful
to place the proposal within this broader framework, Treasury continues to have concerns about
decisions being made on this proposal until further work is undertaken to better understand the
costs and benefits of introducing random drug testing for drivers generally, as well as in relation
to the process for random drug testing set out in the paper. This is of particular importance given
the New Zealand Bill of Rights Act implications of random drug testing for drivers, as identified by
the Ministry of Justice.
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114. The particular areas for further work identified by the Treasury are:
a.  a detailed assessment of the costs of implementing this proposal supported by a cost
benefit analysis, at present the paper notes that funding will be sought from the between
budget contingency but does not provide information on the potential quantum
b.  a robust process for managing the shortcomings of drug-testing technology, in terms of
both the number of drugs that can be tested for and the inability of the oral fluid test to
indicate impairment
c.  an assessment of potential impact on the Justice sector, in the context of the rising prison
population as well as in relation to the implementation of the proposal
d.  a public consultation process, given the significance of this proposal and number of people
it could impact.
115. The above gives rise to concerns about decisions being made at this time on the introduction of
the proposed process for random drug testing for drivers.
Financial implications
116. A new random drug-driving testing regime will result in costs for the Crown. These costs are
worthwhile because they will reduce the social cost of drug impaired driving. Changes to the
testing regime for drug-driving will need additional funding or will require funding to be diverted
from elsewhere.
117. The additional costs and savings to the Crown were estimated as part of the Ministry’s cost
benefit analysis. Table Three below outlines the estimates of total net costs for the first three
years of the infringement regime, introduced in conjunction with infringement penalties.
Table Three: Potential financial implications for the infringement offence (GST excl.)

Cost in year 1
Cost in year 2  Cost in year 3
(15,000 tests)
(30,000 tests)
(45,000 tests)
$m
$m
$m
NZ Police
2.65
4.91
6.83
NZ Transport Agency
0.00
0.00
0.01
Ministry of Justice
0.04
0.07
0.10
Department of Corrections
0.00
0.01
0.01
One-off costs
1.85
-
-
Total financial implications
4.55
5.00
6.95

118. The final cost of the regime will depend on the detail of the statutory regime eventually enacted
by Parliament and the results of the procurement processes undertaken by the Police to obtain
oral fluid screening devices.
119. Over 85 percent of the added costs fall on the Police, and result from the process involved with
testing drivers for drugs. These costs include the cost of purchasing drug screening devices and
the cost of taking and analysing evidential blood samples. However, the Police state that some
of these costs may be overestimated, while others may already exist within their baseline.
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120. Drug-driving and drink-driving enforcement costs are met from the National Land Transport Fund
under the Road Policing Programme of the National Land Transport Programme. The Road
Policing Programme of around $300 million per annum would need to be varied to accommodate
the new regime. The Police state that new funding above their current baseline funding for new
costs, such as the purchase of equipment, will need to be provided. The Police currently spend
around $42 million per annum on alcohol and drug-driving enforcement, with most of this money
being spent on alcohol enforcement. Diverting existing drink-driving enforcement funding to drug
testing could risk undermining drink-driving enforcement.
121. The Department of Corrections believes annual additional costs arising from the proposed
infringement regime and additional random stops will be in the order of $0.6-0.8 million when the
policy is fully implemented4. It states that these costs cannot be met from within baseline funding.
122. The Transport Agency has stated that there would not necessarily be cost impacts from drivers
incurring demerit points from the infringement offence included as part of the preferred option.
However, it states that there may be cost impacts if the new offence led to significantly more
people being suspended, due to drivers having additional demerit points added to their record
due to drug-driving. The cost of administering the demerit point system (and suspensions) is
funded through the driver licence reinstatement fee people pay after being suspended.
123. I propose that the Transport Agency, in conjunction with the Ministry of Transport, review the
driver licence reinstatement fee that applies for drivers after being suspended, to ensure the fee
is sufficient to cover the increased volume of licence suspensions.
124. If Cabinet agrees to the merit of these policy proposals, I recommend that the Ministry, in
conjunction with the Transport Agency, the Police, the Ministry of Justice and Department of
Corrections, will submit a budget bid seeking appropriate funding.
125. It is expected that the Land Transport Amendment Bill will be passed by December 2016. The
proposed regime could be implemented 6 months after the legislation has been enacted.
However, this will require funding to be secured before this date. Funding bids would need to be
submitted before Budget 2017 against the between Budget contingency in order for the regime
to be implemented by July 2017.
Human rights implications
126. Introducing a presence-based random testing regime is likely to engage several rights affirmed
and protected by the New Zealand Bill of Rights Act – in particular the rights to be secure against
unreasonable search and seizure (section 21), not to be arbitrarily arrested or detained
(section 22), and to be presumed innocent until proved guilty (section 25(c)).
127. Increasing road safety by preventing the deaths and injuries caused by drug-driving is an
important public policy objective that may justify limiting rights in order to achieve it.
128. However, justification requires that the chosen means of attaining the objective be both rational
and proportionate. Considerations include:
a.  Is there evidence of a clear causal link between introducing a presence based random
testing regime and deterrence of drug-driving (a rational connection)?

4 If Police are seeking funding to allow for additional police time to conduct the drug tests, the cost to
Corrections will be in the region of $0.6-0.8m per year. If the Police are not seeking additional time to
meet the demands of drug testing, the cost to Corrections is only $0.01m per year.
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b.  Have less intrusive alternatives been considered, and would they be capable of sufficiently
deterring drug-driving (a proportionate response)?
129. The Ministry of Justice has expressed concerns that a sufficiently strong evidential base has not
been presented to justify limiting people’s rights in this way.
130. The need to establish reasonable grounds to detain and search a person is an important
procedural safeguard in preventing unreasonable detentions and searches. This may affect both
people who are not drug-driving and people who have trace amounts of drugs in their systems,
but are not impaired in their driving. Either group could unreasonably be subject to temporary
detainment and an invasive search, or to a false positive leading to further consequences.
131. The key policy questions for Cabinet to consider and be satisfied upon are:
a.  Is there strong evidence that presence based random testing deters drug-driving
significantly more than other methods of deterring drug-driving?
b.  If so, does that evidence of effectiveness at deterring drug-driving justify arresting and
detaining people who may pose no actual road safety risk?
132. The Ministry of Justice notes that final assessment of the consistency of the proposals with the
New Zealand Bill of Rights Act will be undertaken by the Attorney-General once a Bill has been
drafted.
Legislative implications
133. The Act will need to be amended to introduce random drug testing. Cabinet has agreed to
include a Land Transport Amendment Bill in the 2016 legislative programme with a category 3
priority (to be passed in 2016 if possible). This Bill will be introduced in the near future. In the
event, these proposals can not be included in the Land Transport Amendment Bill, another
legislative vehicle will need to be identified.
Regulatory Impact Analysis
134. The Regulatory Impact Analysis (RIA) requirements apply to the proposal in this paper and a
Regulatory Impact Statement (RIS) has been prepared and is attached.
135. The Regulatory Impact Analysis Team at the Treasury (RIAT) has reviewed the RIS and
prepared by the Ministry of Transport and cost-benefit analysis (CBA) and considers that the RIS
does not meet the quality assurance criteria.
136. The RIS contains useful information, but RIAT does not consider the preferred option follows
convincingly from the analysis. The RIS summarises the available evidence from New Zealand
and overseas, discussing a range of options to implement testing. The RIS acknowledges that
little data exists on the extent of drug-driving in New Zealand or the extent to which impairment
caused by drug driving causes harm. The RIS acknowledges that the analysis of a drug-driving
problem is subject to a range of unknowns and uncertainties.
137. The argument for the preferred option is driven strongly by the CBA results and the objective to
“deter drivers from driving drugged”. RIAT considers little weight should be given to the CBA
given the RIS acknowledges considerable uncertainty about the magnitude of the problem (drug-
impaired drivers causing harm).
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138. The review of the drug-driving enforcement regime does not consider the alternative option of
redesigning the Compulsory Impairment Test (CIT). The way the CIT is currently administered is
expensive, but changes to reduce costs were not explored. A cheaper CIT test would also have
a significant impact on the CBA result and unlike the oral fluid test, the CIT can detect
impairment.
139. The options in the RIS have not been subject to public consultation. This is concerning given the
large number of people the proposed changed could impact. The analysis of the “public
acceptability” objective is therefore not convincing, although the RIS does acknowledge the lack
of consultation.
140. RIAT considers there is a stronger case supporting the option to delay a decision on offences or
infringements until public consultation is carried out; more data on the underlying problem is
collected; and testing technology is developed further (acknowledging, for example, the high but
declining incidence of false positives).
Gender implications
141. The Ministry conducts a survey named Public Attitudes to Road Safety yearly. A new question
about driving while affected by drugs with, or without alcohol was introduced in 2014. Six percent
of males responding to this survey said they had driven while affected by 'other drugs' with or
without alcohol, compared with two percent of females. This suggests that a greater percentage
of males than females would be affected by the introduction of a random drug-driving testing
regime.
Disability perspective
142. There are no disability implications arising from this paper, as the current drug-driving
enforcement regime provides for situations where a CIT is unfeasible. The Ministry of Health
notes that the proposed random drug testing regime could have a disproportionate impact upon
people with health conditions and disabilities who use drugs to manage their symptoms.
Publicity
143. I intend to issue a media statement should Cabinet agree to the proposals in this paper. I also
intend to publicly release relevant documents, including this paper and the Ministry’s cost benefit
analysis and Regulatory Impact Statement, once the announcement has been made.
144. The Treasury is not supportive of a media release. The Ministry of Justice considers that funding
should be secured before a media release is issued and legislation is introduced. Similarly, the
Treasury states that because funding may be subject to a Budget bid, it believes issuing a media
statement will put undue pressure on Budget Ministers to support the proposals at Budget.
145. A communications plan will be developed by the Ministry, in consultation with the Transport
Agency and the Police to ensure the public is aware of the changes and the reasons for them.
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Recommendations
146. The Associate Minister of Transport recommends the Committee:
Outcomes of the drug-driving review
1.
note a review of the approach to drug-driving has found:
i.
the estimated social cost of the drug-driving problem is between $96.8 million and
$731.4 million per annum, with a central estimate of $250.5 million (approximately 23
deaths, 112 serious injuries, and 304 minor injuries per year)
ii.
random drug-driving testing should be added to the driver drug testing regime
because random testing regime has a general deterrence effect, and is cost effective
iii.
internationally, impairment-based regimes, similar to the current regime, are
consistently used, often in parallel with other approaches
Random drug testing
2.
agree to introduce a random drug testing regime where an enforcement officer can stop and
administer an oral fluid screening test to any driver of a motor vehicle on a road, without first
needing good cause to suspect that the driver has consumed a drug or drugs
3.
agree the random drug testing regime would run in parallel with the current impairment
testing regime and would involve the following elements:
i.
a random roadside oral fluid screening test for any drugs that are specified by the
Governor-General by Order in Council for the purpose of the test
ii.
a second oral fluid screening test if the driver produces a positive test result for any of
the specified drugs
iii.
an evidential blood test if the second oral fluid test is positive for any of the specified
drugs in the first or second screening test
4.
note that the probable drugs that will be tested for, under the testing process outlined in
recommendation 3, will be methamphetamine, THC (the active ingredient in cannabis) and
MDMA (ecstasy)
5.
agree that drivers who fail or refuse to undergo the first oral fluid screening test when
requested, or who have a positive result on the first test, be required to undergo a second
oral fluid screening test
6.
agree that drivers who fail or refuse to undergo the second oral fluid screening test when
requested, or who have a positive result on the second test, be required to undergo an
evidential blood test
7.
agree that up until the result of the second oral fluid test is shown, Police officers can switch
from the oral fluid screening regime to the compulsory impairment testing process, if they
develop good cause to suspect the driver has taken drugs
8.
agree that, once the Police officer has started the second oral fluid test, the Police officer
must wait until a result is shown on the testing device; if the result is positive the Police
officer must proceed with the infringement path; and if the test is negative the Police officer
may switch to the impairment regime if they have good cause to suspect the driver has used
drugs
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9.
agree that, once a Police officer has switched to the impairment testing regime, they cannot
switch back to the oral fluid screening process
Proposed offences
10.
agree to create an infringement offence of driving or attempting to drive a motor vehicle on a
road where the driver’s blood contains evidence of any specified drug, where offenders
would receive an infringement fee of $200 along with 50 demerit points
11.
agree that the NZ Transport Agency in conjunction with the Ministry of Transport, review the
driver licence reinstatement fee that applies for drivers after being suspended, to ensure the
fee is sufficient to cover the increased volume of licence suspensions
12.
agree to create an offence for drivers who fail or refuse to permit a blood specimen to be
taken, where drivers would face the same penalties as drivers failing or refusing to permit a
blood specimen to be taken under section 60(1) of the Act
Enforcement procedures and powers
13.
agree that Police officers have the power to arrest without warrant, any driver who refuses to
accompany a Police officer for the purposes of the roadside oral fluid screening process, or
fails or refuses to remain for the test, or for the result of the test to become available
14.
agree that the penalties for refusing to accompany a Police officer for the purposes of the
oral fluid screening process, or failing or refusing to remain for the test or for result of the test
to become available, are the same as those that currently apply under the current drug-
driving impairment regime
15.
agree to reproduce, where appropriate, the enforcement procedures and powers and
penalties set out for the alcohol testing regime
Medical defence
16.
agree to create a medical defence for the offences detected by the presence-based regime
that would allow a driver a defence if they had consumed a specified drug in accordance
with a current and valid prescription written for that person and had complied with
instructions from a health practitioner or the manufacturer
Approval of roadside drug oral fluid screening devices
17.
agree that the Minister of Police may approve a device or devices for the purposes of oral
fluid screening, after consulting with the Minister of Science, Minister of Justice and Minister
of Transport, by notice in the Gazette
Hospitalised drivers
18.
agree that a person who is under examination, care, or treatment at a hospital or doctor’s
surgery, as a result of an incident or accident involving a motor vehicle, must supply a blood
specimen to be taken for the purposes of testing for the presence of a specified drug or
drugs.
19.
agree, if the person whose blood is taken in hospital or a doctor’s surgery shows the
presence of a specified drug, they will be liable for the offence agreed to under
recommendation 10, unless the drug detected is a drug listed in Schedule 1 of the Misuse of
Drugs Act 1975, in which case they would qualify for the existing offence under section
58(1)(b) of the Act
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Implementation
20.
agree to implement the new random drug-driving testing regime over three years, with
15,000 random drug tests a year being funded in the first year, rising to 30,000 tests in the
second year, and 45,000 tests in the third and subsequent years
21.
direct the Ministry of Transport, along with Justice sector agencies, to provide the Minister
of Transport, the Minister of Police and the Minister of Justice with an assessment of the
effectiveness of the random drug-driving regime, including the adequacy of the penalties in
deterring offending, once three years of data are available
Amendment to the definition of qualifying drugs in the Land Transport Act 1998
22.
agree that the definition of a qualifying drug in the Land Transport Act 1998 be amended to
include all of the drugs listed in Schedule 3 of the Misuse of Drugs Act 1975, except for Part
6 of Schedule 3
Financial and operational implications
23.
note that the proposal to introduce random drug testing of drivers will have significant cost
implications for the NZ Police, and these would need to met by a variation to the Road
Policing Programme under the National Land Transport Programme
24.
note the proposal to introduce random drug testing of drivers will have cost implications for
the NZ Transport Agency, the Justice system, ACC and the Department of Corrections
25.
note that the Land Transport Amendment Bill has a confirmed priority of category 3 on the
Government’s legislation programme, which means that it should be passed by the end of
December 2016
26.
note that, in order for the random drug-driving regime to be implemented by 1 July 2017,
funding bids would have to be submitted before Budget 2017 against the between Budget
contingency
27.
agree the Ministry of Transport, in conjunction with the NZ Transport Agency, the New
Zealand Police, the Ministry of Justice and the Department of Corrections, will submit a bid
seeking funding before Budget 2017 against the between Budget contingency
28.
direct the NZ Transport Agency, in conjunction with the Ministry of Transport, to review the
driver licence reinstatement fee that applies for drivers after being suspended, to ensure the
fee is sufficient to cover the increased volume of licence suspensions
Human rights implications
29.
note that the random drug testing proposals raise significant consistency issues with the
New Zealand Bill of Rights Act 1990
30.
note that an assessment of human rights implications will be completed once resulting
legislation has been drafted
Legislative implications
31.
note that a Land Transport Amendment Bill, which will implement the legislative proposals
agreed to by Cabinet, has been included in the 2016 legislative programme with a category 3
priority (to be passed if possible in 2016)
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32.
note that the Land Transport Amendment Bill is expected to be introduced in the near future
and, in the event, that random drug testing cannot be included in this Bill, another suitable
legislative vehicle will be identified
33.
invite the Associate Minister of Transport to issue drafting instructions to give effect to the
relevant recommendations above, including any necessary consequential savings and
transitional provisions
34.
authorise the Associate Minister of Transport to make decisions, consistent with the overall
policy decisions in this paper, on any issues that may arise during the drafting process
Publicity
35.
note that a communications plan will be developed by the NZ Transport Agency in
consultation with the NZ Police to ensure the public is aware of the changes and the reasons
for them
36.
note I plan to:
i.
issue a media statement announcing Cabinet’s decisions
ii.
publish relevant documents on the Ministry of Transport’s website once the
announcement has been made, which include this paper and its accompanying
Regulatory Impact Statement and the Ministry of Transport’s cost benefit analysis

Hon Craig Foss

Associate Minister of Transport

Dated:

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Appendix One - Data used in the Ministry’s Cost Benefit Analysis on Drug-Driving
Source
Data Provided
Crash Analysis System
Crash data on drivers found to have used drugs or alcohol
Environmental Science and
Proportion of killed drivers with impairing drugs in their
Research
bloodstream
Max Cameron’s report
Cost per random drug test in Australia
“Random drug testing in
Proportion of random oral fluid tests undergoing a second oral fluid
Australia, analogies with RBT,
test
and likely effects with
Proportion of random oral fluid tests undergoing lab tests
increased intensity levels”
Time for a first oral fluid test
Time for a second oral fluid test
NZ Police
Number of CITs that result in a blood test from Nov 2009 to Dec
2013
Number of blood samples positive for drugs from Nov 2009 to Dec
2013
Proportion of positive blood tests

Time it takes for:
Initial stop for CIT
CIT
Blood test
Transport to station
Transport back to vehicle and address
Prosecution
Lawyer

How much it costs for:
A blood kit
Blood collection
Value for time saving
Blood specimen analysis
Prosecution

NZ Transport Agency
Number of drivers in New Zealand

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Appendix Two - Drugs in Schedule 3 to be added to the definition of a ‘qualifying drug’

Part 2 –Codeine (3-methylmorphine)
Dihydrocodeine
Propoxyphene (α-4 (N, N-dimethylamino)-1, 2-diphenyl-3-methyl-2-propionoxybutane)

Part 3  Acetyldihydrocodeine
Ethylmorphine (3-ethylmorphine)
Nicocodine (6-nicotinylcodeine)
Nicodicodine (6-nicotinyldihydrocodeine or nicotinic acid ester of dihydrocodeine)
Norcodeine (N-demethylcodeine)
Pholcodine (morpholinylethylmorphine)
Propiram  (N-(1-methyl-2-piperidinoethyl)-N-2-pyridylpropionamide).

Part 5 -Amfepramone (2-(diethylamino) propiophenone)
Aminorex
Barbital (5,5-diethylbarbituric acid)
Clorazepate
Ethchlorvynol (ethyl-2-chlorovinylethynyl-carbinol)
Ethinamate (1-ethynylcyclohexanol carbamate)
Mazindol (5-(4-chlorophenyl)-2, 5-dihydro-3H-imidazo [2, 1-a]-isoindol-5-ol)
Meprobamate (2-methyl-2-propyl-1,3-propanediol dicarbamate)
Methylphenobarbital (5-ethyl-1-methyl-5-phenylbarbituric acid)
Methylprylon (3,3-diethyl-5-methylpiperidine-2,4-dione)
Pemoline
Phenobarbital (5-ethyl-5-phenylbarbituric acid)
Phentermine (2-amino-2-methyl-1-phenylpropane)
Pipradrol (1,1-diphenyl-1-(2-piperidyl)methanol)
SPA ((−)-1-dimethylamino-1,2-diphenylethane)

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