Australia-Mondaq Article: Australia: Magistrate dismisses drug driving charge for medicinal cannabis user
A driver who was prescribed medicinal cannabis oil for his multiple sclerosis has had his drug-driving charge dismissed by an Adelaide Magistrate.
Brenton Peters is one of over 3000 Australians legally prescribed cannabis oil, but was facing significant penalties for driving with a detectable amount of THC in system.
In a significant decision, Magistrate Susan O’Connor dismissed Peter’s case citing the fact that there was no indication he was impaired or a danger to other drivers.
Here’s what the decision means and why people are still calling for reform of drug-driving laws in South Australia.
Drug Driving Laws
Like in NSW, it is an offence in South Australia to drive or attempt to drive a motor vehicle whilst a prescribed drug is present in your oral fluid or blood.
Mr Peters was pulled over by police and undertook a saliva drug test which came back with a positive result for THC, the psychoactive component in cannabis.
Cannabis is a prescribed drug under the law, regardless of whether it has been prescribed for medical reasons.
Penalties include a criminal record, licence disqualification and fines.
Offences which relate to legal, prescription drugs in South Australia focus on penalising use where someone is “incapable of exercising effective control of the vehicle” rather than having a detectable amount.
Advocates for medicinal cannabis reform have criticised current laws for being unfairly discriminatory, particularly given different rules apply to other prescription drugs
Medicinal cannabis users have been warned against driving for at least 48 hours after consuming a cannabis product to avoid a positive saliva test.
However, in one infamous NSW drug-driving case, THC was detected via a saliva test of a driver who consumed cannabis a week prior.
Clearly, the current laws provide little certainty for medicinal cannabis users.
Dismissing the Charge
South Australian legal commentators say that Magistrate O’Connor found Mr Peters guilty of the offence, but then dismissed the charge without proceeding to a criminal conviction due to the circumstances of the case, as well as the defendant’s other personal factors.
The South Australian law is similar to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 in New South Wales, which allows a magistrate to exercise his or her discretion to dismiss a charge without recording a conviction even if a person is technically guilty.
The factors relevant to a determination under section 10(1)(a) in NSW are:
- the person’s character, antecedents, age, health and mental condition,
- the trivial nature of the offence,
- the extenuating circumstances in which the offence was committed, and
- any other matter that the court thinks proper to consider.
Magistrate O’Connor warned Mr Peters that he will receive a criminal conviction if he drives with cannabis in his system in the future.
Need for Reform
Given the limitations of current drug-driving laws for medicinal cannabis users, many people are calling for reform.
In 2017, an attempt was made by South Australian Dignity Party MLC Kelly Vincent to reform laws for medicinal cannabis users to allow a defence to existing drug-driving offences. However, this part of the amendment failed to pass through both houses.
“As with other legal medications, [medicinal cannabis] users should be able to be assessed against their personal capacity to drive” Ms Vincent told Sydney Criminal Lawyers® in 2017.
There has been a steady increase in patients approved for medicinal cannabis in Australia, with the TGA granted 25,182 applications from doctors to prescribe cannabis in 2019. This means a large number of patients are currently at risk under existing drug-driving laws.
Alternative models for drug driving testing are available. For example, Norway has been assessing drug levels in a driver’s system (as opposed to any detectable amount) since 2012. This ‘drug level’ approach was also implemented in the Netherlands in 2017.
This recent case follows a number of positive decisions in regarding to medicinal cannabis charges in South Australia.
Jenny Hallam, who was facing prison time for providing chronically ill patients with the cannabis oil free of charge, was given a two-year good behaviour bond last year by SA District Court Judge Rauf Soulio.
Clearly many people, including members of the judiciary, feel that it is time for cannabis reform.
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