Legislative Assembly for the ACT: 2013 Week 14 Hansard (Thursday, 28 November 2013) . . Page.. 4386 ..
when the driver claims he or she believed they were taking another prohibited substance.
Drivers charged with driving whilst they have a prescribed drug in their oral fluid or blood are able to rely on the defence of honest and reasonable mistake of fact in section 36 of the Criminal Code. This defence provides that a person is not criminally responsible for a strict liability offence if the person was under a mistaken but reasonable belief about the facts and, had the facts existed as believed, the conduct would not have been an offence.
This amendment would prevent drivers from seeking to rely on this defence where they knowingly took a prohibited substance which they thought was not a prescribed drug when, in fact, it turned out to be a prescribed drug. The change prevents drivers from claiming that they thought they were consuming a drug such as cocaine when, in fact, the drug they took was a prescribed drug such as speed.
There is clear evidence that the use of illicit, non-prescribed drugs can cause drivers to become impaired and reduce their ability to safely operate a motor vehicle. Drivers who operate a vehicle whilst knowingly under the influence of a prohibited substance potentially pose a greater safety risk than drivers who have consumed a legal drug. Illicit drug users consume these drugs specifically for their mood or perception altering effects, which directly impacts on their driving skills. Users of prohibited substances who put their safety and the safety of other road users at risk by driving whilst under the influence of these substances should not be able to exploit a legal loophole to avoid punishment. This amendment ensures that those drivers are properly dealt with under the road transport law.
The next change made by this bill is to create a power for police officers to direct drivers to remain at the scene where they were originally pulled over by police for the purposes of an alcohol or drug screening test where a screening device is not immediately available or not in working order.
A screening device may not be immediately available if a device malfunctions or a driver is stopped for another purpose but the police officer subsequently suspects the driver has driven under the influence of drugs or alcohol and the police do not have a screening device in their vehicle.
The amendment creates a legislative power to allow a police officer to temporarily detain a driver to undertake an alcohol or drug screening test by directing them to remain at the place where the alcohol screening test is being carried out for the time reasonably necessary for the test to be completed in accordance with the police officer’s directions. The maximum time that a driver can be required to remain at the place they were pulled over under this amendment is 30 minutes. This time would allow a drug screening device to be sourced from the traffic operations centre in Belconnen, where all drug screening units are stored, and delivered to any part of metropolitan Canberra where the driver has been directed to remain.
The third amendment made by this bill is to create an offence of refusing to undertake a screening test for alcohol or drugs. Currently, if a driver refuses to undertake a