If anyone had any doubt about the brutal injustice of our roadside drug testing laws on ordinary people, you need to read this.
It is the story of Shane, a man whose life is about to be destroyed through no fault of his own. Change the law now!
This is the written defence that Shane gave to court, after he was accused of driving with THC in his blood:
Your Honour, whilst the prosecutor has encouraged me to save the court time and submit to his prosecution, I must contest this case as a matter of principle. I’m sorry if half an hour of your time is ultimately wasted, but I prefer the record of my day in court to include my arguments, and perhaps your thoughts on them.
Whilst the state is not responsible for my choice of location, it is responsible for public transport policy inadequacies that would make the application of the mandatory driving ban called for by this legislation a risk of actual harm to my wellbeing.
The state is responsible for refusing to amend a law that discriminates against medically disadvantaged people. It is also responsible for imposing a sanction that discriminates against those who live in rural and regional areas. As such, I would ask for the court’s indulgence as I detail the effect a six-month driving ban would have.
My legal residence is one of convenience; in truth, I live rough and spend much of my time at my wholly off-grid, five-acre farm in Redbank. Unable to travel between my residence and my farm, I would be compelled to live illegally on my farm in order to maintain plants and animals. With snake season upon us, and living illegally in a designated bushfire zone, there is a non-zero risk that not being able to drive could be a matter of life and death.
I would also be unable to tend to my father, a 74 year old Vietnam veteran with significant health issues, who had surgery sixteen days ago and was back in Maryborough Urgent Care on Monday 25th of this month. He has been sick with his current renal issue since November 2022 and is in very poor health. At the time of the incident before the court, I was driving from Redbank to Avoca to visit my father and check in on him. He was unable to drive me today in order to protect me from further prosecution, and I fear his capacity to care for my dog today. I hold medical authority for my father, and not being able to travel could leave me unable to make informed decisions about his welfare.
My physical and mental health appointments would also need to move to wholly online, by telephone or, in the case of physiotherapy, be cancelled altogether. As part of my Jobseeker Allowance, I am obliged to visit my job centre mentor fortnightly, and have been told that I will be required to visit Centrelink doctors for assessment as part of my Disability Support Pension application in the near future. Failure to attend these appointments will likely result in the cancellation of my Jobseeker Allowance and the rejection of my Disability Support Pension application, leaving me entirely without income and having no cash reserves or credit capacity.
As part of the parenting agreement with my former partner, I am permitted to visit my 13 year old daughter in Geelong one Sunday a fortnight. There is no physical means to get from Avoca to Geelong and back on Sunday, let alone Redbank. I would miss her fourteenth birthday and it would be the first Christmas I didn’t see her.
In order to physically survive, I would be required to order food delivered to a block with no street address, and employ personal shoppers to collect mail and medications. Fuel and gas would require finding someone willing to deliver these items, as many services will not.
As a prescription cannabis patient and a member of the Legalise Cannabis Party, I am informed enough to know I am at risk of interception and penalty every single time I get into my car. In keeping with managing an anxiety disorder, I have no wish to be on the roads at all.
I describe myself to acquaintances as “a hermit five days a week” and would prefer that number be closer to seven. However, I am morally obliged to care for my father and visit my daughter. My medical professionals improve my quality of life with every visit, and the federal government insists that I travel some 50 kilometres to meet with one of its commercial agents twice a month. The state also required me to be in St Arnaud today, a town with no direct or indirect public transport to my residence 65 kilometres away, and approximately 59 kilometres from the incident in question.
I must also note that I have discussed with every one of these people – my general practitioners, my psychologist, my physiotherapist, my job centre mentor – that I am a prescription cannabis patient who is at risk every time I keep an appointment. I have no doubt that my name and number on the prescription cannabis register is available to the state, and yet the state requires me today to travel distances that would horrify fellow Victorians from Melbourne, and in full knowledge that I am vulnerable to further prosecution if I take the only means of travel available to me.
The law that I am being charged under is subject to change and all major political parties have spoken in public and in Parliament in support of amending the law. The Legalise Cannabis Party have tabled an amendment and agreed to not hold a vote in return for former Premier Andrews’ promise to make changes. He later announced his 18-month racetrack trial – which my comrades in the Party and I saw at the time as unnecessarily long. I suggested on social media that it was a cynical ploy to delay the matter until after the next election, no doubt hoping the Legalise Cannabis Party is less successful then. Knowing now that former Premier Andrews was planning his retirement when making this decision, it seems evident that his 18-month trial is a gift to his successor by pushing the issue past the next election.
I am engaged with the process of helping change a law considered unfair at best and an unjust persecution of disadvantaged citizens at worst. As mentioned, I am a member of and donor to the Legalise Cannabis Party (Victoria), dating to October 2022, more than three months prior to this matter. I have engaged with the party executive and with individual Members of Parliament, and have expressed interest in standing as a candidate in the past and in the future. I expressed preliminary interest in the cannabis driving trial before the details were announced by the former Premier.
I can demonstrate a record of actively trying to abide by the law and actively trying to change the law. As the prosecutor could prove himself, my thirty-year driving record shows that I have never been a danger on the roads. All of my driving infringements are either one or three demerit point offences. Similarly, in more than 30 years of driving, police have never been required to attend a traffic collision that I was responsible for, nor have I blown anything other than 0.00% on a roadside alcohol breath test. I can also demonstrate that, not only was I unimpaired at the time of the incident, but that I was alert, responsive and cooperative.
I have a number of physical and mental health issues and can demonstrate that my cannabis use is tied to my management of these over an extended period. I have conformed with what you might call “medicinal cannabis” despite deep moral misgivings, and a doctor has agreed that cannabis is the most appropriate means to manage my health.
Your Honour, I stand before you as the wreckage of a former professional, a man with four separate mental health disorders, crippling arthritis and lung disease. I do no harm and peacefully farm my
plot. Finding me guilty today, and sentencing me to a driving ban, will award the highway patrol a single point on their statistics and a few dollars to the state’s coffers, but will have devastating effects on me. I am all too aware of the law, that I face the legal system and not the justice system, but I ask Your Honour plainly: is what I did worth what the prosecutor would like to do to me? Is that just?
Specifically, I have three questions I would like to ask the court:
(a) Firstly, if the state insists that it is not concerned with whether a driver is impaired by cannabis, that it is sufficient to have residual and non-impairing cannabis in one’s system in order to have committed an offence, then it must follow that any such offence is not a road safety measure but a cannabis prohibition one. As such, is it just to apply a mandatory driving sanction for an unspecified, non-driving offence?
(b) Secondly, if the state still insists that testing positive to trace and residual amounts of cannabis while driving is indeed a driving offence, then it has created an offence that the ensures the driver has no means to determine whether they are committing that offence or not. As the prosecution can verify, I was astonished to learn I had returned a positive test to cannabis. I have since learned that d9THC remains in a user’s system for a between two days to two weeks after any effect has dissipated, and that this wide range of time varies from user to user. A driver has no means to determine, or even guess, whether an offence is being committed. Is it just to create a law that the citizen cannot know whether they are in breach of or not?
(c) There are approximately 320,000 prescription cannabis patients in Australia, out of an adult population of just over 20 million, or 1.6%. This means that one in every 63 roadside cannabis tests are potentially being given to people following medical recommendations to manage their health. It would be interesting to compare that number with the percentage of positive roadside cannabis tests, if the prosecution would be so obliging. Uniformly, prescription cannabis patients have physical or mental health issues that have not responded to what you might call “conventional treatment”, and a doctor has said that cannabis is the most appropriate treatment. By either restricting or penalising the movement of this group, is the state not actively discriminating against a disadvantaged 1.6% of the population?
Your Honour, I submit that the law is unjust and discriminatory, and that the sanction is also unjust and discriminatory. I ask that you find me not guilty for the sake of justice and equality before the law.