Regulatory Impact Statement: Legislative
amendments to enable roadside oral fluid testing
Coversheet
Purpose of Document
Decision sought:
Agreement to introduce legislative amendments to enable
roadside oral fluid screening of drivers. This will complement
existing measures for detecting and deterring drug driving
.
Advising agencies:
Ministry of Transport, NZ Police
Proposing Ministers:
Associate Minister of Transport
Date finalised:
19 April 2023
Problem Definition
A roadside oral fluid test (OFT) regime of drivers intended to be introduced from March
2023 cannot be implemented. This is because no commercially-available OFT devices can
meet the legislative approval criteria. The intended benefits of improved detection and
deterrence of drug driving cannot be realised.
The current regime intended to use the OFT devices as the basis for issuing infringements
and stand-down periods for drivers at the roadside. There are limitations in terms of device
accuracy and ability to detect specific drugs. This could result in drivers who haven’t
recently consumed drugs being negatively impacted (due to false positive results). It could
also result in drivers who have recently consumed drugs not being detected (because the
devices can only detect the family or class of drug, not a specific drug).
Executive Summary
Why government intervention is required
Many illicit, recreational and prescription drugs impair driving ability and increase crash
risk.1 Data from the Crash Analysis System2 shows that over 2019-2021, an average of
101 people per annum were killed in crashes where the driver had consumed impairing
drugs before driving. This represented 31% of all road deaths.
A new OFT regime introduced to address the risks of drug driving can’t be
implemented
The government recently took action to address the risks of drug driving by introducing an
oral fluid3 testing regime and other improvements through the Land Transport (Drug
Driving) Amendment Act 2022. This amended the Land Transport Act 1998 (the Act) to
enable Police to randomly stop drivers and test their oral fluid for drugs, in a manner
1 See the final report of the Independent Expert Panel on Drug Driving, released in April 2021, available at:
https://www.transport.govt.nz/assets/Uploads/Report/IndependentExpertPanelonDrugDrivingFinalReportApril2
021.pdf
2 The Crash Analysis System is a tool used to capture information on where, when and how road crashes
occur.
3 Saliva comprises the secretions from the salivary glands, whereas oral fluid is saliva plus other debris in the
mouth.
Regulatory Impact Statement | 1
similar to the alcohol breath testing regime. If the driver failed two oral fluid tests, they
would be forbidden from driving for 12 hours and issued an infringement notice at the
roadside. A medical defence is available for drivers who have consumed medication in
accordance with their prescription or instructions from their health practitioner.
The Act sets out approval criteria for an OFT device. Because the devices would be used
as the evidential basis for taking action at the roadside, the legislation sets a high
threshold for device approval. A Police procurement process undertaken in 2022 was
unable to find a suitable OFT device that met the legislative approval criteria.
Options to enable roadside oral fluid testing
Three options were identified to enable compulsory roadside oral fluid testing:
1. Status quo: delay implementation of the random roadside oral fluid testing regime
until a device is developed that meets the legislative requirements.
2. Amend the OFT device approval criteria and allow for identification of a class or
family of drug (rather than an individual qualifying drug).
3. Introduce a new OFT regime, where the OFT device at the roadside is used as a
screening tool, followed by evidential testing which involves laboratory analysis.
This is the preferred approach.
Potential impact of the preferred option to use OFT as screening tool, with
infringement notices issued following positive evidential test in the laboratory
Benefits
The main benefit of the preferred option is that roadside oral fluid testing could be
implemented within a reasonable timeframe (e.g., 12 months from Royal Assent of any
Amendment Bill) and at a scale that can detect and deter drug driving. This will not only
save lives but will also prevent many road users from being seriously injured in crashes
involving drug drivers.
The preferred option will also address some known limitations of the devices, particularly
around the device accuracy and ability to detect specific drugs. This will also go some way
to addressing concerns expressed by stakeholders, particularly about the impact of false
negative results on drivers.
The Ministry of Transport (the Ministry) undertook a cost-benefit analysis of the original
roadside OFT regime and predicted harm savings of around $415M over ten years
(preventing approximately 65 fatalities and 431 serious crashes that would have resulted in
deaths or serious injuries). We would expect the preferred option to deliver similar benefits,
although at a slightly smaller scale (as the amendments to the Act included other
measures, including higher penalties for drivers whose blood contained high-risk
concentrations of impairing drugs).4
Costs
The preferred option will be more expensive to implement that the current regime in the
Act, as there is an additional oral fluid laboratory test to confirm positive OFT results. The
majority of direct costs of the oral fluid screening test regime will fall to government,
particularly for the Police.
4 Ministry of Transport (2020)
Enhanced testing regime for drug-impaired driving: Cost–Benefit Analysis.
Regulatory Impact Statement | 2
Drivers will bear some costs, including the time detained at the roadside for oral fluid
testing. Drivers who have two positive roadside oral fluid screening tests will be forbidden
to drive for 12 hours, which will involve some cost and potentially considerable
inconvenience.
Risks
Commercially available OFT devices do not test for all qualifying drugs specified in the Act.
Drivers who take drugs and drive may shift to drugs that won’t be detected by OFT
devices. These drivers may still be detected through the compulsory impairment test if a
police officer has good cause to suspect they have consumed drugs.
The preferred option will limit some rights and freedoms affirmed in the New Zealand Bill of
Rights Act 1990, including potentially the right to be secure against unreasonable search
or seizure (section 21) and not to be arbitrarily arrested or detained (section 22). These
rights and freedoms can be subject to reasonable limits that are demonstrably justified in a
free and democratic society (section 5).
There remains a very small chance (0.01% – 5.5%)5 that a driver is forbidden for driving
for 12 hours when they haven’t consumed any qualifying drugs (based on two false
positive OFT results).
Laboratory testing of oral fluid (as opposed to blood) for qualifying drugs is not currently
undertaken in New Zealand by the Institute of Environmental Science and Research
(ESR), the approved laboratory test provider for Police. This poses a risk to the
implementation of the new regime. If ESR is unable to provide oral fluid drug tests there
are other laboratory testing options that can be explored.
Consultation
When developing the preferred option outlined in this statement, we have considered the
views expressed through earlier consultation exercises.6 We consider that the preferred
option addresses many concerns that were previously expressed by stakeholders. We
have consulted with mainly government departments during the development of this paper,
who were largely supportive of our preferred option, although the Office of the Privacy
Commissioner raised some concerns along the lines they previously expressed on the
Land Transport (Drug Driving) Amendment Bill.7 If the preferred option is progressed,
there will be an opportunity for interested members of the public to submit on the proposal
as it progresses through the Parliamentary select committee process.
5
See footnote 18 below for further information.
6
See: Ministry of Transport (September 2019) Summary of Submissions on Enhanced Drug-impaired Driver
Testing, available a
t https://www.transport.govt.nz/assets/Uploads/Submission/Summary-of-Submissions-
Enhanced-Drug-impaired-driver-testing.pdf and the Departmental Report on the Land Transport (Drug
Driving) Amendment Bill (August 2021), which contains a summary of submissions on the bill, available at
https://www.parliament.nz/en/pb/sc/submissions-and-
advice/document/53SCTI_ADV_99686_TI1035/ministry-of-transport-te-manat%c5%ab-waka-departmental-
report
7
We consulted with Police, Waka Kotahi New Zealand Transport Agency, WorkSafe, ACC, the Ministry of
Justice, Manatū Hauora Ministry of Health, the Crown Law Office, The Treasury, Te Puni Kōkiri and the
Office of the Privacy Commissioner. The Privacy Commissioner’s submission on the bill is available at
https://www.parliament.nz/en/pb/sc/submissions-and-advice/document/53SCTI_EVI_99686_TI866/office-of-
the-privacy-commissioner
Regulatory Impact Statement | 3
Limitations and Constraints on Analysis
We have focused our analysis in this regulatory impact statement on addressing the
limitations of the OFT regime in the Act while balancing human rights and impacts on
drivers. We have not considered the broader questions on the extent to which people are
impaired in their driving after consuming qualifying drugs, and the overall effectiveness of
random roadside testing to deter drug driving. These issues were discussed in the impact
statement that supported the initial proposals to amend the Act.8
The Minister of Transport and former Police Minister directed that any new random
roadside oral fluid testing regime to align as closely as possible to the original legislative
intent, taking account of the known limitations of available devices.
Ministers are keen to quickly progress policy decisions and legislative amendment, to
enable oral fluid testing to be introduced as soon as is practically possible. There is limited
time to obtain final policy decisions before the 2023 pre-Election period. Due to this, we
have not consulted with the public or stakeholders, but have engaged closely with Police
and the Crown Law Office. We have not updated the cost benefit analysis completed for
the regulatory impact statement that supported the initial drug driving proposals. We
anticipate the benefit to cost ratio will remain positive.
Some assumptions have been made, for example, the time it will take to conduct oral fluid
screening tests and the cost of those tests plus laboratory confirmation tests.
We note that regimes similar to the preferred option have been proven effective in
overseas countries, notably Victoria,9
in reducing deaths on roads.
Responsible Manager(s) (completed by relevant manager)
Helen White
Manager, Mobility and Safety
Ministry of Transport
26/04/2023
Quality Assurance (completed by QA panel)
Reviewing Agency:
Te Manatū Waka Ministry of Transport
Panel Assessment &
A Ministry of Transport Quality Assurance Panel has reviewed the
Comment:
Regulatory Impact Statement “Legislative amendments to enable
roadside oral fluid testing” produced by the Ministry of Transport
and dated 19 April 2023. The panel considers that the Statement
partially meets the Quality Assurance criteria.
Because the legislated roadside drug testing regime is inoperable,
the preferred option represents a new approach. The Statement
8
Available a
t: https://www.treasury.govt.nz/sites/default/files/2020-08/ria-transport-eddt-jul20.pdf
9
For example, recent research found that an increase in roadside drug tests in Victoria (from 42,000 to
100,000 per year) is estimated to have saved 33 fatal crashes and at least 80 serious injury crashes per
year. Road trauma benefits out-weighed costs by 9.4 to 1. Cameron, M, Newstead, S, Clark, B and
Thompson, L (2022). “Evaluation of an Increase in Roadside Drug Testing in Victoria Based on Models of
the Crash Effects of Random and Targeted Roadside Tests”. Journal of Road Safety, 33(2), 17-32.
https://doi.org/10.33492/JRS-D-20-00272
Regulatory Impact Statement | 4
makes a reasonable case for this option, but there are two
important provisos.
First, given the time constraints this proposal has been developed
under there has not been an opportunity to directly consult non-
government stakeholders, especially the laboratories that will be
required to implement the proposed regime. This deficiency is
partially addressed by previous consultation processes and
experience with a similar regime in Australia. However, the lack of
specific consultation on the new proposal, especially on its
detailed implementation, creates a serious risk that the new
regime, once legislated, will not work as intended. The Statement
points out that some of the implementation issues will be worked
through after legislative enactment when detailed regulations are
drawn up but this is not sufficient to fully close off the risk that the
legislative authority might be inadequate.
Second, time constraints have also precluded a detailed benefit
cost analysis. A previous analysis is relied on.
Regulatory Impact Statement | 5
Section 1: Diagnosing the policy problem
What is the context behind the policy problem and how is the status quo
expected to develop?
Road to Zero is New Zealand’s road safety strategy
1.
In 2021, 318 people lost their lives in road crashes, and a further 2,323 were seriously
injured. Provisional road death figures for 2022 show that 380 people lost their lives in
road crashes. This level of harm has a permanent and profound impact on Aotearoa
New Zealand communities that must be addressed.
2.
Released in late 2019, Road to Zero is New Zealand’s road safety strategy. The
strategy is based on a vision where no one is killed or seriously injured in road crashes.
As a step towards achieving this vision, Road to Zero sets a target for reducing deaths
and serious injuries on our roads by 40 percent (from 2018 levels) by 2030.
3.
The strategy is built around focus areas addressing infrastructure improvements, speed
management, vehicle safety, work-related road safety, road user choices and system
management. The action plan that supports implementation of the strategy includes an
action to enhance drug driver testing.
Drivers in New Zealand are using impairing drugs
4.
Many illicit and prescription drugs have the potential to impair driving, and New
Zealand studies show that drivers are using those drugs and driving.10 These drugs
can slow reaction time, increase risk taking and cause lack of coordination, fatigue and
disorientation, particularly when taken in combination with alcohol or other drugs.
5.
Data from the Crash Analysis System indicates that over 2019-2021, an average of
101 people per annum were killed in crashes where drug use by a driver was a
contributing factor. This represented 31 percent of all road deaths.
6.
While research shows that 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 oral fluid or blood means they are always impaired.11 People respond to
individual drugs, combinations of drugs and different dosages of drugs in different
ways. In contrast to alcohol, there is not a clear linear relationship between dosages of
drugs, when they are taken, and impairment.
Drug driver detection and enforcement in New Zealand is not as effective as it could be
7.
Prior to the introduction of the amendments to the Act, Police at the roadside could only
undertake a Compulsory Impairment Test (CIT) on drivers they had ‘good cause to
suspect’ had consumed drugs. This means a police officer has to explicitly identify a
reason to suspect a driver is potentially impaired from using drugs from external cues,
such as erratic or poor driving, or the driver’s behaviour once stopped. Applying the
‘good cause to suspect’ threshold means it is likely that drug impaired drivers are not
being tested because there are no observable signs of impairment at the time of
driving.
8.
A CIT is a behavioural test, undertaken by a specially trained police officer, usually in a
police station (given the hazards of completing the test at the roadside). It comprises
eye, walk and turn, and 1-leg-stand assessments. A driver who fails a CIT is required
to undertake an evidential blood test. This whole process can take up to 1.5 hours,
which limits the number of tests Police can give to detect and deter drug driving.
10 The final report of the Independent Expert Panel on Drug Driving, above footnote 1, provides a useful
summary of these studies.
11 See the final report of the Independent Expert Panel on Drug Driving, footnote 1 above.
Regulatory Impact Statement | 6
9.
Police records show that 473 CIT blood specimens were submitted for analysis in
2017/2018. It is estimated that, each year, around 500 blood specimens are submitted
for analysis following CITs. In comparison, around 2.4 million compulsory alcohol
breath tests were carried out in 2022. The low number of drug tests limits the
opportunity to achieve a general deterrence effect, meaning that the perceived and
actual risk of detection of drug driving is minimal. A University of Waikato survey of
drivers in 2017 found that 60 percent of drivers thought people were likely to be caught
by Police for drink driving but only 26 percent thought people were likely to be caught
for drug driving.12
10. Effective deterrence requires a highly visible general deterrence component (such as
random roadside drug testing done at scale), backed up with supportive public
education. A significant number of drivers should be tested for drugs each year. The
results of being caught should be perceived as swift, certain and severe but should not
be perceived as unfair.13 The initial regulatory impact statement noted the evidential
basis for deterrence is low, however, most researchers agree that drug driver testing
must be performed at scale to be effective. To address this, the initial cost-benefit
analysis assumed a conservative deterrence impact that carries through to our current
assumptions.14
A new regime to detect and deter drug drivers was enacted in 2022 following a public
consultation process
11. In 2018, the Ministry of Transport, supported by Police, commenced a programme of
work to investigate options to improve New Zealand’s current drug-impaired driver
detection and enforcement regime. In May and June 2019, the Ministry undertook
public consultation on possible approaches to addressing drug-impaired driving. This
consultation informed Cabinet policy decisions on a new drug driver testing and
enforcement regime. A summary of the diverse views expressed during the
consultation exercise is include in the Appendix to this statement. An Independent
Expert Advisory Panel was appointed to provide advice on aspects of the new regime,
including the extent to which people are impaired after consuming qualifying drugs.15
12. In 2022, Parliament passed the Land Transport (Drug Driving) Amendment Act 2022
which sought to introduce random roadside oral fluid testing, amongst other
enhancements to the drug driving regime. The amendments came into force in March
2023, allowing a 12 month lead-in time for Police to procure OFT devices through a
competitive tendering process, develop operational procedures, and train police
officers.
13. The roadside OFT regime was designed to:
• deter people from driving after having consumed a qualifying drug or qualifying
drugs
• remove drivers from the road who have recently used a qualifying drug or drugs
12 Starkey, NJ and SG Charlton (2017) The prevalence and impairment effects of drugged driving in New
Zealand. NZ Transport Agency research report 597, available at
https://www.nzta.govt.nz/assets/resources/research/reports/597/597-The-prevalence-and-impairment-effects-
of-drugged-driving-in-NZ.pdf.
13 Frith, WJ (2020) Risks of driving when affected by cannabis, MDMA (ecstasy) and methamphetamine and the
deterrence of such behaviour: a literature review. NZ Transport Agency research report 644. Available at
https://www.nzta.govt.nz/assets/resources/research/reports/664/664-Risks-of-driving-when-affected-by-
various-drugs-literature-review.pdf
14 See footnote 4 above.
15 The consultation document and summary of responses, plus the reports of the Independent Expert Advisory
Panel, are available on the Ministry’s website
: https://www.transport.govt.nz/area-of-interest/safety/drug-
driving-testing/
Regulatory Impact Statement | 7
• sanction drivers who have recently used a qualifying drug in a way that is
proportionate with risk but minimises potential harm (through the creation of an
infringement regime, rather than relying on criminal offences)
• be operationally feasible for Police (including being efficient and cost-effective)
and
• minimise the likelihood of successful legal challenge and maximise consistency
with the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) and Te Tiriti o
Waitangi.
14. Under the new provisions in the Act, it was intended that drivers could be randomly
stopped (that is, there is no ‘good cause to suspect’ requirement) to undergo an OFT.
Drivers commit an infringement offence if the results of two OFTs are positive and
indicate the use of the same qualifying drug, and the person does not elect to have a
blood test to establish a defence. These drivers will incur an infringement fee, demerit
points, and be forbidden from driving for 12 hours.
15. Under the regime, a medical defence is available for drivers who have consumed
medication in accordance with their prescription or instructions from their health
practitioner. If a driver has a blood test resulting from a failed CIT, they could be liable
for an infringement or criminal penalties depending on the type and level of drug/s
present.
16. The two positive test results, and the ability to request an evidential blood test, were
included in the regime to address the risk of false positive test results which can occur
with OFTs. This risk was discussed in the initial impact statement that supported the
proposals introduced into the Act.16 In summary, there is a risk that OFTs return
positive results when there the drug is either not present, or is present at a level that
should not result in detection (because it is less than the cut-off threshold set in the
device). Manufacturers’ specifications and independent studies point to a range of error
rates (both false positive and false negative results) for devices, typically between one
to ten percent.
17. To achieve a level of general deterrence, Police intended to complete around 33,000
OFT in the first year of operating the new regime, increasing up to 66,000 per annum
over a three-year period.
18. The Act sets out approval criteria for an OFT device. Before the Minister of Police can
approve an OFT, the Minister must:
i.
consult the Minister of Transport and the Science Minister; and
ii.
have regard to the accuracy of the device; and
iii.
be satisfied that the device will return a positive result only if the device detects
the presence of a qualifying drug at a level that indicates recent use of a specified
qualifying drug. When determining this aspect, the Minister must have regard to
any relevant New Zealand Standards or joint Australian/New Zealand Standards.
19. As noted above, people respond to individual drugs, combinations of drugs and
different dosages of drugs in different ways. The OFT device approval criteria includes
reference to recent use as a proxy for impairment.
20. Commercially available OFT devices have drug concentration cut-off thresholds that
are set by the manufacturer. The Independent Expert Panel on Drug Driving noted that
the device cut-off thresholds are generally aligned to oral fluid concentrations set in
New Zealand or joint Australian/New Zealand Standards. The cut-off thresholds are
accepted as a proxy for relatively recent drug use rather than historical use or
accidental exposure. The applicable Standard in New Zealand is the AS/NZS
16 See footnote 8 above.
Regulatory Impact Statement | 8
4760:2019 Australian/New Zealand Standard “Procedure for specimen collection and
the detection and quantification of drugs in oral fluid” (the Standard).
21. The device approval criteria was set at high threshold because OFT devices were
intended to be used as evidential, rather than screening, tools. Infringement fees and
mandatory driving standdown periods would apply on the basis of two positive OFT
results at the roadside, without any further analysis of the driver’s oral fluid. This
approach is unique to New Zealand. OFT devices are designed to screen drivers for
drug use. Other jurisdictions utilise random roadside OFTs as screening devices,
requiring further laboratory testing of either an oral fluid sample or a blood sample in
order to confirm the presence of a specific drug or drugs.
What is the policy problem or opportunity?
The new oral fluid testing regime to detect and deter drug drivers cannot be implemented,
and the regime does not adequately balance human rights and impacts on drivers
22. A roadside oral fluid test (OFT) regime of drivers intended to be introduced from March
2023 cannot be implemented. This is because no commercially-available OFT devices
can meet the legislative approval criteria. The intended benefits of improved detection
and deterrence of drug driving cannot be realised.
23. There are a number of commercially available OFT devices used overseas for roadside
drug testing. In 2022 Police undertook a procurement process to identify potential
devices that could meet the legislative approval requirements. However, due to the
high legislative threshold required for using the devices as evidential tools, none of the
commercial devices currently available on the market can be approved due to concerns
with one or more of these factors:
• accuracy – any device that produces false positive results will not meet the
approval criteria, as the Minister must be satisfied that the device will return a
positive test
only if the device detects the presence of a qualifying drug.
• specificity – any device that detects the presence of a class or family of drug,
rather than specific qualifying drugs within these families, will not meet the
approval criteria for those drugs. Commercially available OFTs can only detect
indicative use of certain individual drugs, but also classes or families of drug (for
example, opiates), rather than specific drugs within these families (for example,
morphine or tramadol). The devices cannot distinguish between the drugs due to
the similarities between their chemical structures.
• recent use – in some cases, a device can detect certain drugs in oral fluid for up
to 24 hours after last use and, for frequent users, up to three days.
24. The current regime intended to use the OFT devices as the basis for issuing
infringements and stand-down periods for drivers at the roadside, despite limitations
around the device accuracy and ability to detect specific drugs. These limitations were
known throughout the development of the amendments to the Act. However, the full
extent of the limitations and their interaction with the legislative requirements was not
clear until after the procurement process was completed.
25. These limitations could result in drivers who haven’t recently consumed drugs being
negatively impacted (due to false positive results). It could also result in drivers who
have recently consumed drugs not being detected (because the devices can only
detect the family or class of drug, not a specific drug). The regime doesn’t adequately
balance legal and human rights considerations, largely because the OFT devices are
being used as an evidential, rather than a screening, tool.
What objectives are sought in relation to the policy problem?
26. The objective is to address problems that have been identified with the current regime
that was intended to use OFT devices as evidential tools, to improve detection and
deterrence of drug driving while balancing legal and human rights considerations.
Regulatory Impact Statement | 9
Section 2: Deciding upon an option to address the policy
problem
What criteria will be used to compare options to the status quo?
27. The following criteria will be used to assess options:
• Detection and deterrence: improved level of deterrence of people from driving after
having recently consumed a qualifying drug or qualifying drugs,17 and improved
detection at the roadside of those who have
• Operational feasibility: be operationally feasible for Police (including being efficient
and cost-effective)
• Human rights and legal consistency: minimise the likelihood of successful legal
challenge and maximise consistency with the New Zealand Bill of Rights Act 1990
(Bill of Rights Act).
What scope will options be considered within?
28. The following factors have influenced the scope of options that have been considered:
• The testing regime will be limited to oral fluid samples. Oral fluid testing is less
invasive than blood tests, easier to administer (blood tests require a medical
professional to be involved) and involves lower costs for any subsequent
confirmatory tests in the laboratory. Mandatory urine testing is not within scope as
these tests are difficult to administer at the roadside due to privacy issues.
• Due to cost and practicality considerations, any regime will need to utilise
commercially available OFT devices that meet any specified criteria for approval.
• The focus of the existing OFT regime is on recent drug use by drivers. As noted
above, the current regime intended for recent use to be a proxy for impairment.
Any OFT device approved for use must have drug concentration cut-off thresholds
that are aligned to the oral fluid concentrations set out in the relevant Standard as
these are accepted as indicating relatively recent drug use.
• Any new regime should align as closely as possible to the current legislative
regime (part of the Ministers’ commissioning).
What options are being considered?
29. The following options are being considered:
i. status quo – delay implementation of the random roadside oral fluid testing regime
until a device is developed that meets the legislative requirements
ii. amend the legislative approval criteria to allow for OFT devices to be used as
evidential devices at the roadside
iii. introduce a new OFT screening regime, where the OFT at the roadside is used as
a screening tool, followed by evidential testing which involves laboratory analysis.
Option One – Status Quo
30. Police will continue to conduct compulsory impairment tests with the existing level of
trained staff, to detect drivers who are impaired by drugs. A police officer must have
‘good cause to suspect’ that a driver had used a drug, or drugs, before undertaking the
test. In 2017/18, 92 percent of blood samples submitted for drugs analysis following a
17 Although the previous regulatory impact statement noted low evidential basis for the deterrent effect resulting
from random roadside oral fluid testing, it has been used to effect in Victoria, Australia. See footnote 9 above.
Regulatory Impact Statement | 10
CIT resulted in drug driving criminal convictions. This illustrates that CITs are accurate
at identifying drivers impaired by drugs. Under this option, Police would likely submit
around 500 blood samples for analysis following CITs per annum. The low number of
tests that Police can complete under the status quo are unlikely to be sufficient to
provide the desired deterrence effect.
31. The OFT regime can be implemented when Police are able to procure a commercially
available device that meets the statutory approval criteria. While Police anecdotally
understand new products may be in development, it is likely to be some years before
these devices are available and there is no clear indication of their potential
capabilities.
Option Two – Amend the legislative approval criteria to allow for OFT devices to be
used as evidential devices at the roadside
32. This option would largely maintain the current regime of random roadside oral fluid
testing. Police would have the legal power to stop and test a driver, without having
good cause to suspect the driver had used drugs. The fundamental design of the
regime would remain the same.
33. The key change under this option is that the Act would be amended to address the
following issues that arose during the procurement process that was unsuccessful in
identifying OFT devices that met the statutory approval criteria in the Act:
Adjust the approval
Commercially available OFT devices can produce false positive (and false
criteria for OFT
negative) results. False positive results are particularly problematic, as they
devices to allow for a
can result in enforcement action taken against drivers who have not
low proportion of
recently consumed any qualifying drug. In recognition of this, safeguards
false positive test
were built into the current OFT regime to mitigate the effects of false
results
positive results, including the requirement for two positive test results before
an infringement notice can be issued, and the ability for a person to request
a confirmatory blood test.
In order for OFT to be implemented using commercially available OFT
devices, the approval criteria must allow for some false positive test results.
The Minister of Police would be required to have regard to the accuracy of
the device, but will no longer need to be satisfied that the device will
only return a positive result if the device detects the presence of a qualifying
drug.
The Minister could take into account any relevant information when
considering the accuracy of a device. For example, the relevant Standard
allows for a 10% error rate, which includes both false positive and false
negative results. This means if 20 samples are tested in blind tests, no
more than two failures in total (either false negatives and/or false positives)
are permitted for each drug class tested. Requiring two positive results
reduces the chances of a driver having two false positive results to around
0.01% – 5%.18
Clarify the test for
Currently, the Minister of Police can approve a device if satisfied that it will
recent use, so that it
return a positive test only if the device detects the presence of a qualifying
is based on the cut-
drug at a level that indicate recent use. Different interpretations of what
off thresholds in the
constitutes recent use are possible as the term is not defined in the Act.
relevant Standard
The original policy intent was to include reference to recent use as a proxy
for the cut-off thresholds set out in the Standard. As noted above, the
Independent Expert Advisory Panel pointed out that cut-off thresholds in
18 The Ministry of Transport’s 2020 cost-benefit analysis of options to enhance drug driver testing regimes
noted that are a number of reasons why an OFT might report a false positive (operator error, manufacturing
fault, sample contamination, unusual subject biology, out-of-operating-limits, climatic conditions, etc).
Performing a second OFT will not necessarily eliminate all of these causes. The chance of a positive result
after two OFTs could therefore range from 0.01% – 5.5%.
Regulatory Impact Statement | 11
devices aligned to oral fluid concentrations set in the Standard are generally
accepted as indicative of relatively recent drug use. However, the current
legislative threshold overrides reference to the Standard and the meaning of
recent use is not clear. An amendment is required to give effect to this
intent.
Allow an
Currently, the Minister can only approve an OFT device for the purpose of
infringement notice
testing oral fluid for the presence of one or more individual qualifying drugs.
to be issued when a
The relevant infringement offence provisions are also linked to two positive
driver tests positive
oral fluid tests for the same qualifying drug.
for a class or family
For many qualifying drugs, OFT devices do not indicate the use of a specific
of drug that a
drug, but rather a class of drugs. For example, the methamphetamine
qualified drug is part
channel can also detect MDMA (a different qualifying drug). This means a
of (rather than a
positive result from this channel could mean the possible use of either
specific qualifying
methamphetamine or MDMA or both. Similarly, the opiate channel typically
drug, as is currently
detects possible use of morphine, codeine and dihydrocodeine. The
the case).
benzodiazepine channel can detect possible use of several drugs in that
Allow the approval of class.
devices that test for The current requirement to identify the presence of an individual qualifying
classes of drugs that drug significantly limits the scope of the current OFT regime, as a large
a specified qualified number of qualifying drugs will be excluded from the testing regime. Allowing
drug is part of
for the testing of families of drugs that a qualifying drug is a member of would
address this issue, provided the OFT device channels do not also detect
drugs that are not listed in the Act as a qualifying drug.
New offence provisions will need to allow infringement notices to be issued
to drivers that test positive for a family of drug that a qualified drug is part of
(rather than a specific qualifying drug, as is currently the case).
34. This option would deliver the policy objective of addressing the problems with current
OFT device approval criteria that were highlighted during the procurement process.
35. Because this option would enable Police to implement the roadside OFT regime using
commercially available devices, Police will be able to better detect drivers that have
recently consumed qualifying drugs. Police could roll out roadside OFT at a scale that
would enable deterrence and remove drivers from the road where they test positive for
a qualifying drug (or family of drugs that a qualifying drug is a member of). This is also
a cost-effective option, as there would only be the cost of the OFT devices, with
laboratory confirmation blood tests only required if requested by a driver (as under the
current regime).
36. The option is likely to be supported those who made submissions in favour of
introducing oral fluid testing under a presence-based approach which penalises drivers
at the roadside. This was the position of the majority of submitters on the Ministry’s
2019 public consultation document, and around a third of submitters on the Bill that led
to the amendments to the Act.
37. In terms of the impact this option would have on particular community groups, it may
have a disproportionate impact on specific communities. Submitters on the Bill that led
to the amendments to the Act were concerned about the disproportionate negative
outcomes of the OFT regime on young people, Māori and lower socio-economic
communities. They noted that these groups are already overrepresented in the justice
system and rates of cannabis use. A Ministry of Health survey has found that Māori are
2.2 times more likely to use cannabis compared to non-Māori.19
38. The impact of this option might be more severe for those living in rural communities, as
the 12-hour prohibition on driving following two positive oral fluid tests will present
challenges for those people to get home, to work, or wherever they need to be.
19 Ministry of Health (2015)
Cannabis Use 2012/2013: New Zealand Health Survey.
Regulatory Impact Statement | 12
However, at an operational level, the Police would not leave a driver stranded in a rural
area once forbidden to drive, as they have a duty of care with respect to these drivers.
39. Issues of fairness and consistency with rights that are affirmed under the New Zealand
Bill of Rights Act 1990 (the Bill of Rights Act) arise with this option, for the very small
portion of people who have two false positive test results. While these people can
challenge these results through a blood test and will not receive an infringement fine as
a result, they will still be stood down from driving for the mandatory 12 hours. These
drivers would face costs and potentially considerable inconvenience as a result.
Submitters on the Bill that led to the amendments in the Act also pointed out that that
the elective blood test option would be an expensive and time-consuming process that
may undermine the effectiveness of the ability to challenge the OFT results. As a
result, this option doesn’t adequately balance legal and human rights considerations.
40. The likelihood of false positives occurring and concerns about recent use remain the
same as under the status quo. This means some drivers will be issued an infringement
notice where they may not have consumed a qualifying drug.
Option Three – Introduce a new OFT screening regime, followed by evidential testing
which involves laboratory analysis
41. Option three addresses the issues that arose with the procurement process that was
unable to identify an OFT device that met the statutory approval criteria in the Act. A
new provision will be required that sets out the approval criteria that the Minister of
Police must be satisfied of before approving an oral fluid
screening test. These criteria
will align with the existing criteria (in section 71G of the Act) but with the following
changes:
Adjust the approval
As with option two, amendments would be made to the device approval
criteria for screening
criteria to allow for some false positive test results. The Minister of
devices to allow for a
Police would be required to have regard to the accuracy of the device,
low proportion of false
but will no longer need to be satisfied that the device will
only return a
positive test results
positive result if the device detects the presence of a qualifying drug.
Clarify the test for recent As with option two, amendments would be made to clarify the reference
use, so that it is based
to “recent use” in the approval criteria for screening devices. Recent use
on the cut-off thresholds
would be defined with reference to the cut-off thresholds set out in the
in the relevant Standard
relevant Standard. Recent use is an important part of the regime, as it
acts as a proxy for impairment.
Allow the approval of
As with option two, amendments to the screening device approval criteria
screening devices that
would be made to enable devices to be approved that detect families of
test for classes of drugs
drugs that individual qualifying drugs are members of.
that a specified qualified
drug is part of
OFT devices would be used as a screening tool
42. The main difference between option two and option three is that for option three the
OFT device would primarily be used as a
screening tool, whereas option two uses the
OFT devices as evidentiary testing devices. An infringement offence would only be
established if positive roadside oral fluid tests are confirmed through laboratory tests.
Confirmatory laboratory testing follows the model of many international jurisdictions,
including many states in Australia.
Regulatory Impact Statement | 13
43. Under this option, two positive oral fluid screening tests at the roadside would still be
necessary before enforcement action is taken. While two OFTs at the roadside, as
opposed to one, will involve higher implementation costs20 and result in drivers who
have an initial positive test result being detained for longer (each test takes
approximately five minutes to return a result), two positive test results reduces (but
does not eliminate)21 the chances of enforcement action being taken against drivers
who return false positive results. Requiring two positive OFTs is an important
safeguard in the system.
44. Following two positive oral fluid screening tests, the driver would be prohibited from
driving for 12 hours, to address the safety risk they pose to other road users and
themselves if they continue driving. Operationally, Police would not leave a driver
stranded or unable to re-access their vehicle once forbidden to drive, as it has a duty of
care to uphold. A very small number of drivers may be forbidden to drive following two
false positive tests at the roadside.22
Laboratory confirmation of roadside OFTs required before infringement could be issued
45. The driver’s oral fluid sample would then be sent to a laboratory for confirmatory
testing.23 The laboratory test will be used to confirm (or not) the presence of the
qualifying drug or drugs detected by the oral fluid screening test. Where the screening
test identified a family of drugs, the lab test will confirm (or not) the presence of one or
more qualifying drug that is a member of that family, and any qualifying drugs
detectable by that channel.24 The laboratory test will
not test for all of the qualifying
drugs listed in the Act (due to fairness and cost issues).
46. We intend to develop regulations made under the Land Transport Act 1998 which set
out the procedures for dealing with oral fluid specimens, including (but not limited to)
chain of custody processes and the laboratory testing method. We will work with Police
to ensure all relevant processes are in place for implementation. This is expected to
take approximately 12 months.
47. An infringement penalty would only be issued if the laboratory test was positive for the
relevant qualifying drug or drugs. This addresses the most common issue raised by
submitters on the Bill that led to the amendments in the Act, which was the concern
about the accuracy of the OFT devices and the risk of false positive results. These
issues were also reflected in the advice of from the Independent Expert Panel.
Requiring laboratory confirmation of OFT results before issuing an infringement directly
responds to these concerns.
48. Police are not aware of false positive results from confirmatory laboratory testing in
other jurisdictions. This implies a high level of accuracy in these tests. A successful
challenge may result where the integrity of the oral fluid sample was compromised
(e.g., if the sample was kept at an incorrect temperature). Processes will be put in
20 Oral fluid tests are estimated to cost between $20 – $45 per test. The Ministry’s initial Cost Benefit Analysis
of the OFT scheme implemented through the amendments to the Act, which does require two positive OFTs,
estimated that (based on 66,000 OFTs per annum) there would only be a minor decrease in scheme costs
(approximately $0.4M) if a single OFT was used, meaning that there was little value in removing the
safeguard of a second positive test for the savings offered.
21 See footnote 18 above.
22 See footnote 18 above.
23 Police are yet to confirm whether two or three oral fluid swabs will be required from the driver, as this is
reliant on the outcome of the procurement process. However, Police expect only two will be required given
the process followed in international jurisdictions.
24 Some drugs are detectable on multiple channels of an OFT, due to similarities in their chemical structure.
For example, an OFT device may have a separate methamphetamine and amphetamine channel. The
methamphetamine channel may also detect MDMA and other amphetamines detectable on the
amphetamine channel. Similarly, the amphetamine channel may detect metabolites of methamphetamine.
Regulatory Impact Statement | 14
place, covering the collection, handling and storage of oral fluid samples, to mitigate
the risk of this occurring.
49. Where a person refuses or fails (some drugs inhibit the production of oral fluid) to
undergo an oral fluid screening test at the roadside, they will be required to undergo a
blood screening test. This could result in an infringement offence (if a qualifying drug is
detected above the tolerance threshold but below the high-risk criminal threshold) or
criminal charge (if a qualifying drug is detected at or above the high-risk criminal
threshold).
50. A medical defence will also be available for drivers facing infringement fines where they
have taken their medication in accordance with their prescription and following any
instructions of their health practitioner. To address the potential road safety risk, these
drivers will still be forbidden from driving for 12 hours.
New provisions will be required in the Act to give effect to this option
51. The option to use an OFT as a screening device will require the following additional
changes to the OFT regime as set out in the Act:
New offence provisions
The Act currently includes infringement offences for drivers where the
results of two oral fluid tests are positive and indicate the use of the
same qualifying drug [new section 57A(3), infringement fee is $200 and
50 demerit points].
The Act also currently includes infringement offence where the oral fluid
tests indicate the use of 2 or more qualifying drugs [new section 57B(3),
infringement fee is $400 and 75 demerit points].
There are also new combined offences (where blood or breath contains
alcohol, and two oral fluid tests indicate use of one or more qualifying
drugs).
New infringement offence provisions (with the same penalty levels) will
be introduced which apply where drivers have two positive oral fluid
screening tests, and a laboratory test confirms the presence of the same
qualifying drug (or a qualifying drug that is in the same family that was
identified in the screening test). Some other consequential amendments
will be required.
New enforcement
New provisions in the Act (sections 71A – 71C) specify who must
provisions
undergo first, second or further oral fluid tests. The is also a provision
(section 71E) that requires a person who fails or refuses to undergo an
oral fluid test to undergo an evidential blood test. Similar provisions will
be required to enable oral fluid screening tests.
Section 94A covers mandatory prohibition from driving for 12 hours if the
results of two oral fluid tests are positive. A similar provision will be
needed for those that fail two oral fluid screening tests.
A new provision will be required to enable a laboratory confirmation oral
fluid test for a person who has had two positive oral fluid screening tests.
The driver will be provided with an oral fluid sample in case they want to
arrange for their own independent testing.
New evidential
New provisions in the Act deal with evidential matters (for example,
provisions
section 77A, which provides that, for the purposes of proceedings for
infringement offences, it is to be presumed (in the absence of proof to
the contrary) that a person’s oral fluid contains a qualifying drug if the
results of the first and second oral fluid tests indicate the use of the
drug).
A similar provision will be needed for those that have two positive oral
fluid screening tests plus a positive confirmatory laboratory test.
New
procedures
for The Act currently sets out procedures for dealing with blood specimens
dealing with oral fluid (section 74). We propose that procedures for dealing with oral fluid
specimens
specimens be set out in regulations, drawing on the requirements of the
Standard. During the development of these regulations and operational
Regulatory Impact Statement | 15
policy development, consideration will be given to the importance of
acknowledging that DNA is considered taonga by Māori, which has
impacts for the collection, storage and use of genetic material.
Regulations are suitable for these more minor or technical matters of
implementation and operation of the Act.25 The regulation-making power
in the Act (section 167((1)(n)) allows regulations to be made “as are
contemplated by or necessary for giving full effect to the provisions of this
Act and for its due administration”.
There are benefits and risks with this option, and potential risks
52. As with option two, this option:
• would address problems that have been identified with the current regime, especially
in terms of the approval criteria for the OFT devices, and fairness issues associated
with people being issued infringements on the basis of a device manufactured for
drug screening purposes.
• would enable Police to detect drivers that have recently consumed qualifying drugs.
Police could roll out roadside OFT at a scale that would enable deterrence and
remove drivers from the road where they test positive for a qualifying drug (or family
of drugs that a qualifying drug is a member of).
• would likely be supported those who made submissions in favour of introducing oral
fluid testing under a presence-based approach where drivers would be penalised at
the roadside.
• would address concerns raised by stakeholders about using OFT devices as the
basis for taking enforcement action. Infringements will only be issued as a result of a
positive confirmatory test in a laboratory.
• could result in a very small proportion of drivers being prohibited from driving for 12
hours on the basis of two false positive roadside OFT. These drivers would however
face costs and potentially considerable inconvenience as a result. They may face
challenges in getting to work, education, or their dependents getting to childcare, for
example. This risk is mitigated by the requirement to have two positive OFTs before
this action is taken. This also needs to be weighed against the road safety risk posed
by the vast majority of drivers who test positive for drugs they have consumed.
• may have a disproportionate impact on specific communities, including on young
people, Māori, lower socio-economic communities and those living in rural areas.
53. This option will cost more to implement than the status quo (option one) and option two
because of the costs associated with confirmatory laboratory testing. We estimate that
laboratory confirmation tests of oral fluid would cost around s 9(2)(b)(ii), s 9(2)(i) The exact
cost will not be known until Police complete a procurement process for laboratory
services. However, at this estimated cost, laboratory testing is likely to cost in region of
s 9(2)(b)(ii), s 9(2)(i)
This is unlikely to have a material impact on the previous Cost
Benefit Report, given that report indicated a positive benefit to cost ratio of 12:1.
54. Laboratory testing of oral fluid (as opposed to blood) for qualifying drugs is not currently
undertaken in New Zealand by the Institute of Environmental Science and Research
(ESR), the approved laboratory test provider for Police. This poses a risk to the
implementation of the new regime. If ESR is unable to provide oral fluid drug tests
there are other laboratory testing options that can be explored.
25 Legislation Design and Advisory Committee (2021) Legislation Guidelines, p 68. Available at
www.ldac.org.nz/assets/documents/LDAC-Legislation-Guidelines-2021-edition.pdf
Regulatory Impact Statement | 16
Te Tiriti o Waitangi considerations
55. The Crown has obligations to Māori under Te Tiriti o Waitangi when designing and
implementing policy. A key obligation in the context of road safety is the Crown’s duty
to promote equitable outcomes for Māori. Māori experience substantially higher rates of
road traffic death and serious injury than people of other ethnic groups in Aotearoa
New Zealand.26 We also are aware that Māori are overrepresented in the justice
system and are more likely to use cannabis compared to non-Māori.27
56. These factors have informed the development of the proposed infringement offence
scheme, which mitigates the risk of Māori receiving criminal penalties for drug-impaired
driving. However, there remains the potential for unpaid fees to escalate drivers into
the criminal justice system. By detecting and deterring drug driving, roadside oral fluid
testing aims to reduce deaths and serious injuries, which will provide a benefit to this
population. Officials consider this to provide more of a benefit than a potential
increased risk of interaction with the criminal justice system.
57. Police will also design operational procedures before it implements the regime. Police
is aware of risks that will need to be managed to ensure that certain groups, including
Māori, are not unfairly targeted.
58. The penalty levels in the proposed regime will align with penalties currently in the Act.
The infringement offence will attract a $200 infringement fee and 50 demerit points.
While not criminal, the penalty is moderately severe. This may impact a driver’s
employment opportunities or their ability to travel. However, an infringement regime will
likely support the Government’s commitment to avoid criminalising drug use where
appropriate, support a change to the societal approach to drug driving, and put less
pressure on the Justice sector.
59. This option gives better protection for drivers’ rights. Drivers would no longer be issued
an infringement fee on the basis of false positive oral fluid testing results, as these
results would now be confirmed by laboratory test. The confirmatory laboratory testing
would follow established procedures and be to an evidential standard. However, these
drivers would still be prohibited from driving for 12 hours, resulting in cost and
potentially considerable inconvenience.
We have consulted with government departments on this option
60. Police is supportive of the preferred option. Police would like to explore further
amendments to the regime. However, this has not been possible due to scope and time
constraints.
61. Waka Kotahi NZ Transport Agency (Waka Kotahi) is supportive of the preferred option.
It notes this option may cause cost pressures on the National Land Transport Fund
given the additional implementation costs. Waka Kotahi also note that the preferred
option may require more time at the roadside from police officers, which may limit time
spent on other road policing tasks. This trade-off should be considered from a cost-
benefit perspective and included the next 2024-2027 Road Safety Policing Partnership.
62. The Ministry of Justice is generally supportive of the preferred option. It acknowledges
there are human rights and Bill of Rights concerns with taking oral fluid samples from
drivers. However, the Ministry is supportive of the safeguards proposed to mitigate
these concerns and that these will be further scrutinised if a Bill is developed.
Additionally, the Ministry of Justice note the importance of ensuring the regime does
not perpetuate/mitigates the risk of systemic and unconscious bias when it comes to
26 For 2013 to 2017, the average rate of death and serious injuries (DSIs) per 100,000 population for al Māori
men was 87 compared to the average rate of 61.5 for all men. For Māori women the DSI rate was 40.5 per
100,000 population, compared to 29 for all women. Waka Kotahi (2021).
He pūrongo whakahaumaru
huarahi mō ngā iwi Māori: Māori road safety outcomes.
27 Ministry of Health (2015)
Cannabis Use 2012/2013: New Zealand Health Survey.
Regulatory Impact Statement | 17
profiling those more likely to be targeted by enforcement of the regime. We will work
with Police to address this issue.
63. The Office of the Privacy Commissioner indicated privacy concerns with the oral fluid
testing regime. The concerns centre on the lack of sufficient evidence that the
proposed privacy intrusion is proportionate, considering the anticipated benefits, and
some specific issues about matters relevant to privacy principles under the Privacy Act
2020, including issues around fairness and accuracy in the collection, use and
retention of highly sensitive personal information. We note that some of these issues
can be addressed through the development of regulations that will set out the
procedures for dealing with oral fluid specimens.
Regulatory Impact Statement | 18
How do the options compare to the status quo/counterfactual?
Option One
Option Two – Amended approval criteria plus
Option Three – New OFT screening regime, with
– Status
allow for detection of class/family of drugs
laboratory confirmation
Quo
++
++
Enables OFTs to be rolled out at the roadside, at scale,
Enables OFT to be rolled out at the roadside, at scale, supporting the
supporting the detection and deterrence of drug driving
Detection and
detection and deterrence of drug driving
0
deterrence
Infringement fines and demerit points can be issued at the
Infringement fines and demerit points can be issued following a laboratory
roadside, resulting in swift penalties being imposed
test that confirms the presence of the qualifying drug(s)
Drivers who produce two positive OFTs will be removed from the
Drivers who produce two positive OFTs will be removed from the road
road
+
Commercially available OFT devices can be used to test for the presence of
qualifying drugs at the roadside
Operational
++
Two positive screening OFTs are required for roadside enforcement action;
feasibility
Commercially available OFT devices can be used to test for the
and a positive confirmatory lab test is required to establish an infringement
(efficiency and
0
presence of qualifying drugs at the roadside
offence. There will be additional costs and training associated with collecting,
cost
Two positive OFTs are required before enforcement action can
storing and transporting oral fluid specimens to the lab. s 9(2)(b)(ii), s 9(2)(i)
effectiveness)
be taken
Laboratory testing of oral fluid for the presence of qualifying drugs is not
currently done in New Zealand on a large scale
- -
-
s 9(2)
Human rights
Raises potential consistency issues with New Zealand Bill of
Raises potential consistency issues with New Zealand Bill of Rights Act,(h)
Rights Act and potential legal challenge around accuracy issues
and legal
0
with the OFT devices
consistency
Higher likelihood of enforcement action against a driver where a
device gives a false positive result
Overall
0
++
++ Preferred option
assessment
Key:
++ much better than the status quo
+ better than the status quo
0 about the same as status quo
-
worse than the status quo
- - much worse than status quo
Regulatory Impact Statement | 19
What option is likely to best address the problem, meet the policy objectives, and deliver the highest net benefits ?
64.
Options two and three are a significant improvement on the status quo, as they meet the objective of addressing problems that have been
identified with the current regime, while addressing (to some extent) the fairness/human rights considerations. Both options would improve the
detection and deterrence of drug driving through the use of a compulsory, random (that is, no ‘good cause to suspect’ requirement) roadside
oral fluid testing regime. High visibility, high-volume testing with the swift delivery of sanctions are key requirements to achieve deterrence.
65.
Option two (amended approval criteria for OFT device, plus allow for detection of class/family of drugs that a qualifying drug is a member of)
has some advantages over option three (new OFT screening regime, with laboratory confirmation), in that it is more efficient and cost effective
to administer the roadside oral fluid testing regime. Under option two, typically only two oral fluid tests are required (or one test for those that
have an initial negative result), and the penalties are applied swiftly (no need to wait for confirmatory laboratory testing). However, option two
carries a higher risk of a infringing human rights and successful legal challenge.
66.
Option three has some additional advantages, around fairness, appropriate use of the OFT devices and s 9(2)(h)
Option three uses the OFT devices as screening tools, which is what they are manufactured for. Infringement penalties are only
issued on the basis of positive evidential tests undertaken in a laboratory environment, which is fairer for drivers and is likely to be more
consistent with the Bill of Rights Act. Option three is more expensive to implement than the other options, because of the costs of laboratory
tests. On balance, this option is preferred.
Regulatory Impact Statement | 20
What are the marginal costs and benefits of the option?
67.
We have not completed a cost-benefit analysis of options two and three in this
regulatory impact statement, given time constraints. The following table draws on
estimated cost and benefit information that was used for the OFT regime that was
introduced into the Act.28 We would expect these values to be similar under our
preferred option, with some additional costs for the laboratory confirmation tests. As
noted above, these tests are estimated to cost s 9(2)(b)(ii), s 9(2)(i) Police estimate that
around 7 – 9% of drivers will have two positive oral fluid screening tests, requiring
laboratory confirmation. If 66,000 drivers are tested every year, we would expect
approximately 4,600 – 6,000 confirmatory tests, at an estimated cost of s 9(2)(b)(ii), s 9(2)(i)
68.
The authors of the initial cost-benefit analysis noted some evidence gaps, including
information about the prevalence of drug driving in New Zealand and the limited
evidence to determine the deterrence effectiveness of oral fluid testing. Despite the
limitations of the data, and the range of estimated impacts, the OFT regime
introduced in the Act had a positive benefit cost ration of 12:1, which supported the
introduction of the regime.
Affected groups
Comment
Impact
Evidence
(identify)
nature of cost or benefit (eg,
$m present value where
Certainty
ongoing, one-off), evidence and
appropriate, for monetised
High, medium,
assumption (eg, compliance
impacts; high, medium or
or low, and
rates), risks.
low for non-monetised
explain
impacts.
reasoning in
comment
column.
Additional costs of the preferred option compared to taking no action over 10 years
(ranges are provided in brackets)
Regulated groups
Drivers:
$1.2M ($0.7 – $2.1M)
Medium
Time detained at the roadside for
OFT – the cost-benefit analysis
estimated inconvenience to innocent
drivers of approximately 6,000 hours
every year. The mean value of travel
time for commuters ranges from
$30.90 (in free-flowing traffic) –
$57.24 (in heavy traffic) per hour29
Infringement fines
Some drivers may be forbidden from
driving for 12 hours when an OFT
device produces a false positive
result, potentially resulting in cost and
considerable inconvenience
Regulators
NZ Police:
$26.3M ($17.5 – $40M)
Purchase of OFT devices and testing
equipment, police time for testing and
processing drivers [note storage and
transportation of oral fluid samples for
28 Footnote 4 above.
29 Denne, T, Kerr, G, Stroombergen, A, Glover, D, Winder, M, Gribben, B, & Tee, N (2023). Monetised benefits
and costs manual (MBCM) parameter values: Results of a survey to derive values for road safety, travel time
and reliability (Waka Kotahi NZ Transport Agency research report TAR 18-04).
Regulatory Impact Statement | 21
confirmatory testing, costs of
confirmatory lab tests, are not
included in this estimate]
Waka Kotahi and/or Police:
$0.5M
Education and information about the
new scheme
Ministry of Justice:
$1.1M ($0.5 – $1.9M)
Costs associated with action on
unpaid infringements
Total monetised
$29.1M ($18.7 – $44M)
costs
Non-monetised
costs
Additional benefits of the preferred option compared to taking no action
Regulated groups
Road users:
Approximately 431 crashes
Reduction in harm from fatalities and
prevented, that would have
serious crash injuries
resulted in either death or
serious injuries, over a ten-
year period.
65 fatalities prevented, over a
ten-year period (a saving of
around $812.5M, based on an
updated value of statistical life
of $12.5M per fatality)30
Total monetised
$812.5M (fatalities only, not
benefits
including serious injuries)
Non-monetised
benefits
30 Footnote 29 above. This represents the mean value of statistical life, which has a range of $8.1M – 16.9M.
$12.5M is the mid-point. Note this value has increased since the cost-benefit analysis noted above was
published in 2020.
Regulatory Impact Statement | 22
Section 3: Delivering an option
How will the new arrangements be implemented ?
69. The scheme will be given effect through amendments to the Land Transport Act 1998,
as outlined above in the description of the options.
70. The Police will be responsible for implementing and enforcing the scheme. Police has
advised that they will require a minimum 12-month lead-in time after the legislation is
passed, to procure OFT devices and laboratory testing services through a competitive
tendering process, develop operational procedures and train police officers.
71. A key implementation risk is the ability to procure the necessary oral fluid testing
devices that meet the statutory requirements. This risk is considered low, as the
preferred option involves changing the approval criteria to address issues that were
highlighted through the procurement process conducted by Police in 2022. There is
also a risk around procuring the confirmatory laboratory testing services at the scale
required to implement option three. Laboratory testing of oral fluid for the presence of
qualifying drugs is not currently done in New Zealand on a large scale. However, this is
not new technology. Many overseas countries currently conduct confirmatory
laboratory tests of oral fluid. This risk can be mitigated through early engagement with
laboratories in New Zealand.
72. The Ministry of Transport, Police and Waka Kotahi will work closely to develop
guidance and education about the effect of the new scheme.
73. Other agencies with an interest in the scheme will be involved in monitoring and
evaluating the scheme.
How will the new arrangements be m onitored, evaluated, and reviewed?
74. The Ministry of Transport and Police will monitor the new arrangements with support
from Justice sector agencies and the Ministry of Health, initially after one year and
three years of data are available.
75. Evidence to support the monitoring of the scheme wil be available from the NZTA’s
CAS database and laboratory data on drug prevalence in the blood samples of drivers
who have killed or hospitalised from road accidents, or who have failed a CIT and been
required to provide a blood sample. Police and the Ministry of Transport will collect
further data about the operation of the oral fluid testing regime. This will likely include
the:
• number of individuals tested
• number of false positives on first and second oral fluid tests
• number of blood tests
• drugs identified by the testing devices and laboratory analysis of blood tests
• number of infringement notices issued
• number of defended hearings
• public perception of dangers of drug driving
• public perception of likelihood of being stopped and tested
76. The Act includes a statutory review provision (in Schedule 1, Part 4) that requires the
Minister of Transport to appoint a reviewer to undertake a review of the drug driving
amendments. The reviewer must be appointed no earlier than three years and no later
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than four years after the commencement of the provisions. The reviewer must be
independent of the Ministry of Transport and the New Zealand Police.
77. The statutory review is wide-ranging. It must consider a range of factors, including:
• the impact of the amendments
• the reliability of oral fluids in assessing a person’s impairment
• whether the amendments have been appropriately implemented by the New Zeeland
Police and other relevant agencies
• whether the amendments have had a disproportionate impact on Māori and Pasifika
people, and
• the extent to which, if it can be assessed, the number of people driving while
impaired by drugs has changed since the amendments came into force.
78. Monitoring data collected by Police and other relevant agencies will be used to support
the statutory review. The timeframe for the review will need to be adjusted to account
for the delays in implementing the oral fluid testing regime.
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Appendix: summary of consultation on drug driving
The oral fluid testing regime was extensively consulted on at the time the amendments to the
Act were being developed and progressed through Parliament. An independent expert panel
was also established to advise government on key aspects of the regime. Diverse views
were expressed, with the following key themes emerging from this engagement:31
• there was general support for the introduction of roadside OFT in New Zealand,
although some were in support of the OFT being a component of an impairment-
based regime (e.g. OFTs used as a screening test for a subsequent compulsory
impairment test).
• there were concerns expressed about the accuracy of OFT devices, with support for
a second oral fluid test following a failed first test. There was also some support
expressed for taking a blood sample for evidential purposes. Others preferred
Australian models where, following a failed oral fluid screening test, another sample
of oral fluid is collected for evidential analysis.
• some raised concerns about the time taken to undertake the tests (3 to 5 minutes).
Others argued it was a minor inconvenience in order to save lives.
• Māori experience disproportionate harm from drug abuse and drug offending. There
was support expressed for a health-based non-punitive approach to drug driving
offending. The importance of acknowledging that DNA is considered taonga by Māori,
which has impacts for the collection, storage and return of genetic material, was also
highlighted.
31 See: Ministry of Transport (September 2019) Summary of Submissions on Enhanced Drug-impaired Driver
Testing, available a
t https://www.transport.govt.nz/assets/Uploads/Submission/Summary-of-Submissions-
Enhanced-Drug-impaired-driver-testing.pdf
Regulatory Impact Statement | 25
