One of Professor Bunyip’s blogging obsessions is excessively intrusive traffic policing in his home State of Victoria. It’s understandable if Bracks’ henchmen are anything like NSW, with whose practices I’m much more familiar through annual holiday visits. Speed cameras proliferate, usually positioned at locations having little or nothing to do with safety and everything to do with maximising revenue.
As far as I can see, the Professor’s position (like mine) flows from a liberal philosophical position rather than narrow self-interest. Then again, I should confess that I’ve been zapped a couple of times in the last 4 years by speed cameras in Darwin, and twice in one week a couple of years ago going down Spit Hill in Sydney (apparently the highest revenue-raising speed camera in Australia – no doubt because it’s impossible to keep below the speed limit without shifting down gears or keeping your foot on the brake).
The Professor has emailed me querying my attitude towards random saliva testing of drivers for cannabis and other drugs. Apparently it was recently introduced in Victoria, and is already snaring lots of victims:
Victoria Australia police’s operation to randomly test drivers for traces of drugs had a dramatic start, with two motorists out of the first 16 tested returning positive samples.
Police say that within minutes of starting the tests in Yarraville, two motorists tested positive to traces of cannabis.
If secondary samples also prove positive, those drivers face fines of $300 and license demerit points.
Assistant Commissioner Bob Hastings says officers had no idea the initial tests would produce results so soon.
“We had a driver test positive within our fourth driver into the queue and that was somewhat surprising so early on,” he said.
“As I said, we had no real expectation of what we were going to find out on the roads but it was a surprise.”
The Professor first asks about the constitutional situation in the US where, he observes:
police in the US can’t pull people over at random, since this has been ruled a violation of the bit in the Constitution dealing with unjust and discriminatory search and seizure. If American coppers want to run sobriety tests, they must test all drivers who come down the road, not just those that tickle Cadet Constable Plod’s particular interest.
The Professor is essentially correct, as this Findlaw article explains. Under the Fourth Amendment to the US Constitution, police need “probable cause” to administer something like a breath or saliva test. They can’t simply do it at random as occurs in Australia. But I’m not sure it makes any real practical difference. Ther would be no constitutional bar to American police pulling over motorists as long as they did it in a systematic rather than random way. But having pulled them over, they couldn’t subject a motorist to breath or saliva testing unless they had “probable cause”. But that would simply mean smelling alcohol on the breath or noticing bloodshot eyes or something of that sort. And once you tested positive, you could guarantee the officer would swear blind that he had smelled or noticed it and you’d have no way of proving otherwise.
A more interesting question is whether we should view roadside drug testing in the same way we view alcohol testing. The Professor’s attitude towards the latter mirrors my own:
Don’t imagine that I oppose alcohol testing, as I don’t. There is ample evidence of the harm alcohol does behind the wheel, there are clinical calibrations for degees of inebriation, and the tests themselves take a mere few seconds and involve no great inconvenience. Plus they are reliable, which the saliva tests clearly are not — and booze testing is clearly warranted by the grim statistics of Victoria’s former road toll. You couldn’t have been in Victoria in the late Sixties/Seventies and not been aware of the damage grog was doing to innocents. One Easter, if I remember correctly, something like 34 people died, most of them no doubt pissed or the victims of the pissed.
But the Professor sees cannabis testing as more problematic:
The surveys on driving while stoned show no such clear co-relation. One piece in the New Scientist reported test results that actually showed improved driving performance. And the most comprehensive survey of driving ability, conducted in Holland and the only one of which I’m aware to use real cars and public roadways, found only a minimal decrease in coordination (there was a slight tendency to drift to right or left, but not out of the lane and not dangerously; women, if I remember, drift more than men, but so do they in most things, apart from the enforcing of their will).
That summary certainly appears to reflect the information in this 4 year old BBC Story. But it seems that more recent research is less rosy for the potheads. Not only is there last week’s Four Corners story (not specifically about cannabis’s effects on driving ability), but this 2 year old ABC TV Catalyst story:
Drugs are now responsible for more deaths on the road than alcohol, and the most common is marijuana. So the government in Victoria has pledged to introduce the equivalent of the alcohol breath test. Catalyst’s Graham Phillips investigates Australia’s first random roadside drug test.
Philip Swan is searching for the equivalent of the random breath test. For drugs this is a saliva test, where a driver has a swab put under their tongue. But that’s where the random drug-test dream gets problematic. Swan is currently evaluating the wares of a number of instrument companies from around the world to see if there is any product up to the task.
The other question hanging over random drug testing is: what is the equivalent of .05 for substances like marijuana? How many joints could a person smoke and still be capable in the drivers’ seat?
Researchers at Swinburn University are trying to evaluate this. They get volunteers to smoke joints and drink alcohol and then jump behind the wheel of a driving simulator. The scientists then monitor their vital statistics, like how fast they drive, whether they drift out of the lane and how well they respond to sudden surprises on the road.
So far they have managed to dispel one of the great myths about marijuana. While it is true that marijuana drivers tend to drive more slowly, they are not safer. Their weakness is an inability to make quick decisions when something unusual happens on the road. Work is still in progress to see what the equivalent of .05 would be. …
Narration: The debate’s being going on for years, but at last we have a definitive answer. For more than a decade, everyone who’s ended up in this Melbourne morgue from a car accident has had their blood analysed”¦to see if the crash was caused by alcohol, marijuana, amphetamines or other drugs. And Olaf Drummer’s results were staggering.
Professor Olaf Drummer: Drivers who use cannabis and are driving shortly after are almost seven times higher risk of being involved in a fatal crash than a drug free driver.
Narration: In fact, drugs combined kill more people on the roads now than alcohol, and the leading killer drug is marijuana. This result was a genuine surprise, because some studies had shown marijuana was not that dangerous”¦ because it makes you a more cautious driver.
Dr Katherine Tzambazis: Yes, there were some reports suggesting that those who consumed cannabis actually overestimate the effects of the drugs and therefore compensate for those impairing effects.
Narration: But the manager of drugs alcohol and fatigue for Vic Roads, Philip Swann, says many of the academic studies were fundamentally flawed.
Dr Philip Swann: One of the problems we’ve found is that academics are limited by ethics committees to study very low doses and that bears no resemblance to what happens on the road. The sorts of levels that are found in the morgue are much higher.
That strikes me as pretty persuasive. My approach to these sorts of issues is essentially a classical liberal one. I apply JS Mill’s observation that “[T]he burden of proof is supposed to lie with those who are against liberty; who contend for any restriction or prohibition”¦. The a priori assumption is in favour of freedom”¦” Of course, if I was discussing it with Mark Bahnisch, I’d have to concede that the communitarian critique of liberalism has considerable force, that we’re indisputably social beings and that society is probably ontologically prior to the individual. But that doesn’t negate the force of a classical liberal approach in the political arena. JS Mill’s approach ensures that convinced authoritarians, who arrogantly seek to impose their own opinions and moral intuitions on the rest of us, can only do so after proving that the balance of harm really does strongly favour regulation.
But application of that principle to the research findings outlined above suggests that the burden of proof has been satisfied in relation to the effects of cannabis, provided that it has also now been established what concentration of THC in the bloodstream is equivalent in impairment terms to .05% blood alcohol, and that the test kits police are using can reliably detect those levels and not snare too many false positives.
Update – The Good Professor reckons I’ve “come down on the side of Bracks the Thief“. He needs to read my post more carefully, in particular the last sentence starting with the words “provided that”. It’s manifestly a critically important proviso, as some other commenters recognised. Although (as Yobbo claimed) alcohol has different effects on different people too, the fact remains that the 0.05% blood alcohol limit is well-supported by research, in that both controlled driving tests and road accident data show that that level of alcohol in the blood leads on average to a very large increase in accident risk. Unless research on the driving impairment effects of cannabis has reached a similar point of specificty on a genuinely threshold limit, the current Victorian regime is just a revenue-raising stunt on a par with the actual operation of speed cameras. Is there a threshold limit for conviction for cannabis DUI, or is it zero tolerance? The Victorian government’s Drive Alive site makes no mention of any threshold limit, which rather leads me to suspect it is a zero limit (which would be outrageous and unjustifiable). However, since I have no immediate plans to drive in Victoria anyway, and won’t be doing it stoned even when I do, my outrage is shallow and it’s not a question I’m deeply motivated to explore.
I also simply don’t know (but am idly interested) whether research has reached the point of establishing a credible, non-arbitrary driving threshold impairment limit. The Professor might like to phone those researchers at Swinburn
Tech University and ask them. After all, it’s only a local call for him, and they started work on that task 2 years ago according to the story quoted above. You’d reckon they’d have achieved some concrete results by now, unless they’ve been smoking the research materials.
The Professor threatens to post again on this topic in the near future. I’ll be awaiting his findings with interest.
Update 2 – Looks like my suspicion was right. According to this NSW government briefing paper, “The Road Safety (Drug Driving) Act 2003 (Vic) commenced on 1 December 2004, making it an offence to drive a motor vehicle with any concentration of cannabis or methylamphetamine in the blood or oral fluid.” Here’s a link to the Act itself. Indeed section 4 provides:
“prescribed concentration of drugs” means, in the case of a prescribed illicit drug, any concentration of the drug present in the blood or oral fluid of that person …
Come to think of it, if Rex Ringschott is correct that THC doesn’t in fact get secreted in saliva but is only picked up in debris in the mouth, there might be the glimmer of a workable defence, in that the concentration can’t be said to be present “in the … oral fluid of that person”. Trouble is, it appears they give you a blood test too once they get the positive saliva sample. THC is so persistent in the bloodstream that they’d almost certainly zap you anyway, unless you were like Jeff Shaw and had a friend in camp who slipped you both blood samples by mistake.