Drug Driving Testing – Will the Ends Justify the Means

Nicholas looks into the Drug Driving Testing protocol rolled out in 2017 by the Road Safety Authority and the powers given to An Garda Síochána to implement these procedures. What are the repercussions for cannabis users in Ireland who know to drive responsibly but still have THC in their system?

Since 2017, An Garda Síochána have carried out Roadside Preliminary Drug Testing to combat the dangers of driving under the influence. The initiative, set up by the Road Safety Authority, ensures the welfare of drivers in Ireland and seeks to identify and penalise those impaired. On the 13^th of April 2017, An Garda Síochána were given the power to test drivers orally for Cannabis, Opiates, Benzodiazepines and Cocaine either at the roadside or in a Garda station. The process is facilitated by Dräger saliva drug testing kits which provide a quick and non-invasive diagnostic system that can be used for either mobile or stationary applications.

While there is a law against driving under the influence of drugs wherein the driver’s ability is compromised to the extent where they do not have proper control of the vehicle, there is also a secondary law that prohibits driving under the influence of certain drugs even if they do not impair the driver. These drugs are cannabis, heroin, and cocaine and if drivers are found with any of these substances in their system are above a specified limit, drivers can be prosecuted for drug driving despite having the wherewithal to manage the vehicle. When rolling out the program, the RSA ran a thorough online media campaign in raising awareness of the new drug testing powers entrusted to the Gardaí. The campaign featured short videos outlining how the tests were to be administered and the consequences should a test provide a positive result.

You will find very little pushback to the implementation of such a program as driving under the influence is a major problem in Ireland with 118 roadside deaths accounted for in 2020 alone.[1] However, testing procedures and analysis for cannabis has created a few issues in the integrity of the drug-testing program. Should an individual smoke cannabis on a Friday, despite being sober the following morning, a roadside test could incur a positive result as that individual still had cannabis residue in their saliva. This results in a penalty for drug driving but not for driving under the influence. While the driver was in full control of their vehicle and had the ability to make split decisions if need be, the driver is at fault for consuming an illegal substance rather than having said substance affect their ability to drive.

This is quite disconcerting not just for recreational users but also those that briefly experiment with cannabis as resin can still be detected in the bloodstream up to 30 days after consumption or months depending on how frequent you smoke.[2] Those in receipt of a medical exemption certificate and avail of medicinal marijuana must always carry it when driving. Though as seen with the recent rollout of the Medical Cannabis Access Programme, only a miniscule number of drivers will be able to avail of the medical exemption.

Over the counter, medicines are not detected by the test though products such as Neurofen and Solpadine contain opiates which can be detected in the driver’s oral fluid. As long as the Gardaí conclude that the driver is not impaired, they can drive off.

There is no argument that the work Gardaí carries out in drug testing at roadside is needed as drink driving is a serious issue with driving under the influence of drugs labelled an offence since 1961. Since 1999, An Garda Síochána has had the assistance of The Medical Bureau of Road Safety in testing drivers. The issue falls into the latest power given to the Gardaí in preliminary drug tests at the roadside or a station. This new policy was underpinned in the Road Traffic Act 2016 and allows the Gardaí to carry out these tests. Before, a garda needed to have a specific reason to stop a driver under suspicion of driving under the influence of an illicit drug before they could take any action. The scheme is not exclusive to Ireland as the Drager Drug Test 5000 is used internationally to enforce road traffic laws in countries such as Germany, Spain, Australia, and Britain.

The test itself takes 1 minute to collect the oral sample and 8 minutes to process. It is conducted at roadside, where the driver’s oral fluid is taken and processed with the Drager testing kit. Should the test result in a positive, it is up to the Gardaí to determine whether the driver is impaired enough to drive carefully. If they are of the opinion that the driver is impaired, an arrest can be made, and a further urine or blood specimen will be requested which will be tested by The Medical Bureau of Road Safety at a later date.

A spokesperson from An Garda Síochána said that “the oral fluid test is not used for evidential purposes but as an indicator of the presence of drugs. Prosecutions will be taken on the basis of the blood test conducted following arrest.”

The kit utilises a technique called lateral flow immunoassay to detect whether any drugs are in the driver’s system and refusal to take part is an offence which can lead to a €5,000 fine or imprisonment up to 6 months or possibly both. The repercussions positive drivers face is no different from the penalties currently in place for drink driving. There are thresholds put in place for cannabis and should the driver’s result go above the limit of 10ng/ml, it will be considered an offence and the Gardaí will not need to prove impairment for arrest. A disqualification period as decided by a judge will result from a conviction of drug driving.

When asked whether it would be safe to drive after a single cannabis joint, Professor Denis Cusack of the Medical Bureau stated:

“This is the problem with cannabis. When you are drinking alcohol, the measures are regulated. The trouble with cannabis is it is not regulated. And we know – compared to say 20 or 30 years ago – what is in joints now, what people put in, they do not know the concentration or the strength or effect. That is the problem when you say, ‘am I safe with one joint?’ … I would have to go back and say it is the same as alcohol. Don’t drink and drive, don’t take drugs and drive.”[3]

It has been recommended by the Gardaí that if you are a recreational smoker, you should wait 24 hours before driving after consuming cannabis. If you are certain you are no longer impaired and more than 6 hours have elapsed since last using it, it should not be possible for the test to discover 9 – Tetrahydrocannabinol (THC) levels higher than the detection limit.

Due to the unregulated nature of marijuana consumption, how long THC stays in the driver’s system is not as straightforward as it seems. A spokesperson for the Department of Transport said:

“The oral fluid test has a THC cut-off of 10ng/ml. Generally, THC levels in oral fluid are typically less than 10ng/ml 6 hours after last use, but this depends on many factors such as tolerance, dose, potency etc.”[4]

Nevertheless, a study in The Clinical Chemistry Journal in 2012 produced results that THC was still detectable in a person’s saliva for periods for 2 to 22 hours among a group of people who smoked one joint with a 6.8% concentration level. Therefore, for chronic users of cannabis, THC elimination rates are slower, and THC remains detectable in the body for longer periods compared to users who consume cannabis infrequently. It is still problematic to accurately identify how long the body dispels THC to not be detected after use.

Many have lost loved ones to improper road safety, so it is imperative that road safety measures are put in place to tackle impaired driving but in doing so comes the infringement of certain liberties. The regulation of cannabis would solve this issue as consumers would have access to a range of potencies and strains of cannabis, making it easier to understand whether you are over or under the limit, no different than alcohol. The Road Safety Authority stated from April 2017 to July 2019, 68% of drivers with drugs in their system tested positive for cannabis.[5] With 2 out of every 3 drug tested drivers resulting positive for cannabis, it demonstrates just how normalised cannabis consumption has become in Ireland.

It would be hard to convict anyone with cannabis in their system as it can stay in the bloodstream for up to 7 days and hair follicles for up to 3 months. There are very little means to determine at what point did the driver ingest the drug. As it is an oral test, THC can only be detected for up to 12 to 24 hours, however, if it is the metabolites of THC that are sought after then it can be detected up to several months depending on the usage. The problem found here is the government does not have an answer as to what they are specifically looking for. It looks like this law unfairly targets cannabis users as just trace amounts of THC can result in a fine even if the Gardaí cannot accurately prove if the driver has impaired or not.

There are hundreds of thousands of cannabis users in Ireland and are otherwise law-abiding citizens who do not deserve to have their lives affected by such intrusive procedures. It remains to be seen whether the Drager Drug Test can confidently convict drivers of cannabis use.

[1] https://www.irishpost.com/news/number-of-deaths-on-irish-roads-in-2020-higher-than-last-year-despite-lockdown-reducing-traffic-196313

[2] https://www.healthline.com/health/how-long-does-weed-stay-in-your-system

[3] https://www.thejournal.ie/drug-testing-gardai-rsa-3336503-Apr2017/

[4] http://www.drugs.ie/features/feature/the_facts_garda_roadside_preliminary_drug_testing

[5] https://www.rsa.ie/en/Utility/News/2019/Drug-driving-a-major-problem-on-Irelands-roads/