Acquittal of man caught drug-driving nine days after smoking cannabis throws NSW drug laws into doubt

[Yeti101]

New South Wales's roadside drug testing laws have been thrown into doubt after a magistrate acquitted a man who tested positive for cannabis he had smoked nine days before he was pulled over.

Lismore magistrate David Heilpern yesterday found Joseph Ross Carrall not guilty of driving with an illicit drug in his blood because he mistakenly believed that he would no longer test positive to the drug.

Mr Carrall was pulled over for random drug tests in May and June last year.

When he was tested in May, he said the police officer told him he should wait at least a week after smoking cannabis before driving.

Mr Carrall said he relied on this advice when, in June, he waited nine days after smoking cannabis before he got behind the wheel.

When he was pulled over again, traces of THC were detected in his saliva and he was arrested and charged.

The arresting police officer told the court that "a line had been drawn" and that now you could be "a smoker and not drive, or a driver and not smoke" and that that was the "effect of the new laws".

But Mr Heilpern said when drug testing legislation was introduced in 2006 it was clear that "ministers had in mind that it would be drugs that were active and affect the skills that were the mischief".

"Clearly, in 2006, the technology was not nearly as advanced as it is now," Mr Heilpern said.

"Certainly it was not the aim of the ministers that if you consume cannabis [at all] you cannot drive [ever]."

Mr Heilpern said no-one was seriously contending that Mr Carrall was still affected by the drug.

He found Mr Carrall not guilty on the grounds that he had made an "honest and reasonable mistake of fact".

Mr Carrall pleaded guilty to the same offence, which he committed in May, and will sentenced on a date to be fixed.

Mr Carrall's lawyer, Steve Bolt, told the ABC that the law should be designed to improve roadside safety, not punish people for smoking cannabis.

"It's wrong, in my view, to be punishing people [by] taking their licences away when someone might have a had a smoke or two of cannabis a few days before driving a car," he said.

"It makes as much sense as taking someone's licence away for having a beer two or three days before driving a car.

"Unfortunately a lot of people would be at risk of falling foul of this legislation even though their experience of having used the drug would have had zero effect on their ability of driving a car safely.

More: http://www.abc.net.au/news/2016-02-02/man-caught-drug-driving-days-after-smoking-cannabis-acquitted/7133628

[ghosty]

hmm, good to see common sense still prevails (don't know what it costs though) in SOME states.

[-RC-]

It's all love homies

Nice link Dr.

[Yeti101]

A precedent worth taking note of, I think.

[Sallubrious]

It certainly opens up a new can of fish.

So would that precedent stand in every NSW court of the same level - ie local district courts ?

Obviously it could be challenged in a higher court but it could get a bit tricky for the prosecutors if the new raft of suggested marijuana regulations gets legs and starts making progress, it could become a political hot potato.

Whatever you say can held against you.

"I swear officer, I haven't smoked pot for 9 days"

[-RC-]

^ "... and it was for medical purposes".

[ghosty]

^ "... and it was for medical purposes".

Oh how i wish that had the worth it should but to quote a less than desirable species ; "It's dangerous. illegal. I'm recording conviction".

[GorrilaGardener]

it would be awesome to have clear and concise instructions when it comes to being stoned and being able to drive

I wonder if you will be able to have 2 J's the first hour and one every hour after as per alcohol blood level laws? haha

[-RC-]

I reckon they can certainly get very accurate dosage info on every form of packaged retail cannabis, in whatever form.

It will always be dependent on multiple variables, but if you know the mg dosage of whatever you're using you can potentially self-moderate more effectively, and hopefully learn how much gets you where in a safer way.

I'd expect all retail-available edibles in Colorado would be required to have very specifically displayed info re ingredients and THC/CBD content per serve, etc.

[GorrilaGardener]

I reckon they can certainly get very accurate dosage info on every form of packaged retail cannabis, in whatever form.

It will always be dependent on multiple variables, but if you know the mg dosage of whatever you're using you can potentially self-moderate more effectively, and hopefully learn how much gets you where in a safer way.

I'd expect all retail-available edibles in Colorado would be required to have very specifically displayed info re ingredients and THC/CBD content per serve, etc.

Any idea how they handle the situation of driving under the influence of cannabis in Colorado and the other legal/medicinal states?

Do the police there have a testing system to establish if you are too high to drive?

[Yeti101]

Any idea how they handle the situation of driving under the influence of cannabis in Colorado and the other legal/medicinal states?

Do the police there have a testing system to establish if you are too high to drive?

Would love to hear from someone stateside regarding this. In Colorado the limit is 5 nanograms of THC per ml of blood, though I'm a little unclear on the detail of how they decide to do the blood test. https://www.codot.gov/safety/alcohol-and-impaired-driving/druggeddriving/marijuana-and-driving and http://norml.org/legal/item/colorado-drugged-driving have more details. What's interesting is this distinction:

Thompson v. People, 510 P.2d 311 (1979) -- Standard of proof for DUI is "substantially under the influence," rather than intoxication to the "slightest degree". The degree of intoxication must be substantial so as to render one incapable of safely operating a vehicle.

What we have now is, in my completely unqualified and uninformed opinion, is something like that decision. Where exactly this will lead remains to be seen.

[Strontium Dawg]

It's a tricky area. In my youth, I choofed so much over so many years that in a test I took for a friends research paper I went over the top of the assay limit. Yet I had abstained for several days prior to the test, and in my opinion at the time, felt totally straight. If you are a long term user, how long would you have to wait to hit this limit I wonder?

[Yeti101]

More on this decision: http://www.abc.net.au/radionational/programs/lawreport/nsw-driver-beats-cannabis-driving-conviction/7147728#transcript

[SayN]

It's a tricky area. In my youth, I choofed so much over so many years that in a test I took for a friends research paper I went over the top of the assay limit. Yet I had abstained for several days prior to the test, and in my opinion at the time, felt totally straight. If you are a long term user, how long would you have to wait to hit this limit I wonder?

Yeah, I think of this as Obelix-syndrome...

[ghosty]

It's a tricky area. In my youth, I choofed so much over so many years that in a test I took for a friends research paper I went over the top of the assay limit. Yet I had abstained for several days prior to the test, and in my opinion at the time, felt totally straight. If you are a long term user, how long would you have to wait to hit this limit I wonder?

Do you want the "clinical bullshit"? if so; one month for every year of use. blah blah blah.. bullshit.

Do you want my personal tried tested and proven results? if so; 2-5 weeks depending on use. smoking just one cone will stay with you (+ result in urine) for 2 - 2 1/2 weeks. Smoke for a week every day (say you have allot of work to do, or very complex design or theory to nut out) and you will test positive for 3-5 weeks (the same as if you smoke every day for 25 years).

tested with cannabis only urine testing kits of high quality standards.

many synthetics will test + for 1 1/2 - 2 weeks. but, STAY AWAY from that shit.

these are my personal findings. for urine testing. saliva unknown by me, though i would not mind speculating it would be same duration or longer.

Edited February 12, 2016 by ghosty

[Yeti101]

DEFENCE lawyer Steve Bolt used Tuesday's forum to spell out a line of defence to cannabis users.

He offered the audience the advice they should visit the Centre For Road Safety's web page, Drugs and Driving, and read the section that states "cannabis can typically be detected in saliva by an MDT test stick for up to 12 hours after use".

"They added the word 'typically the day after the Police v Joseph Carrall case in Lismore this month," he said.

"If you therefore wait at least 12 hours after using cannabis you can reasonably expect it will not be detected, according to advice provided by the NSW Government. A precedent has been set which could allow you to test this in court. The onus is on the prosecution to prove otherwise."

But, he said, there was no guaranteed outcome as ultimately it was up to the magistrate.

http://www.northernstar.com.au/news/roadside-drug-testing-the-magic-12-hour-rule/2927695/