Whose roads? Critiquing the criminalisation and enforcement of drug driving laws in NSW

In June 2015, Joseph Ross Carrall was pulled over by police and subject to a random roadside drug test.[1] Though he tested positive for THC (the principal psychoactive component of cannabis), Mr Carrall told the Lismore Local Court that he had waited nine days after smoking marijuana before getting behind the wheel. Magistrate David Heilpern acquitted him on the basis that Mr Carrall committed an honest and reasonable mistake of fact at the time of the offence. This essay is not concerned with the defence of honest and reasonable mistake of fact, as it applies to strict liability offences.[2] Instead, it focuses on the making and policing of drug driving laws in New South Wales. I seek to demonstrate how the criminalisation of drug driving fits within a tradition of empowering prosecutors, the principal agents of the criminal justice apparatus. I critically analyse the substantive offence of ‘drug driving’ and the expansion of police powers by way of the random roadside drug testing regime. In my analysis I adopt McNamara’s ‘thick’ conception of criminalisation, drawing from both empirical and theoretical research.[3]

This essay has two parts. In Part I, I lay down my theoretical foundations. I draw on William Stuntz’s concept of the prosecutor-legislator alliance as a model for criminal lawmaking, a framework that views criminalisation as an endeavour that is as much shaped by frontline prosecutors as it is by elected legislators.[4] From my analysis of Road Transport Legislation Amendment (Drug Testing) Bill 2006 (‘Drug Testing Bill’), I concur with Stuntz’s view that prosecutors are the criminal justice system’s ‘real lawmakers’.[5] I then zoom out and situate drug driving among its fellows as a ‘pre-inchoate offence’ (that is, an offence that criminalises dangerousness as a concept).[6] I argue that, given the available empirical evidence on drug use and road safety, drug driving is more concerned with the former than the latter.

For analytical purposes, Part II separately examines the offence component and expansion in police powers effected by the Drug Testing Bill. First, I locate that the offence of drug driving in the broader ‘war on crime’. I argue that criminalising the presence of a drug in a person’s system is ‘paradigmatic’ of the state’s war on crime.[7] Furthermore, through increasingly sophisticated drug detection technologies, drug driving stretches the traditional boundaries of time and space — rendering it an even more powerful ‘sweeping offence’ than its antecedents ‘possession’ and ‘vagrancy’.[8] Second, I critique the device of random roadside drug testing as an unchallenged expansion of police powers. I consider the random roadside drug testing regime in the wider context of ‘crime control’ and contrast it against the` policing of drug possession. Ultimately, I seek to critique the criminalisation and enforcement of drug driving laws in NSW as an unjustified expansion in prosecutorial discretion and police power.

Part I

‘Making’ criminal law: the politician-prosecutor alliance

In this section, I outline the amendments effected by the Drug Testing Bill: the criminalisation of the presence’ of an illicit drug in a person’s oral fluid, blood or urine and the expansion of police drug detection powers by way of random roadside testing. I suggest that the bill crystallises Stuntz’s prosecutor-legislator alliance, a concept that asserts ‘[l]egislators are better off when prosecutors are better off.’[9] I argue that the criminalisation of drug driving, as a ‘presence’ offence, has had the effect of expanding prosecutorial discretion and power.

The Road Transport Act 2013 (NSW) makes it an offence for a person to drive a motor vehicle, or occupy the driving seat of a motor vehicle and attempt to put it in motion, if a prescribed illicit drug is present in that person’s oral fluid, blood or urine.[10] A ‘prescribed illicit drug’ is defined as delta-9-tetrahydrocannabinol (also known as THC), methylamphetamine (also known as speed), and 3,4-methylenedioxymethylamphetamine (also known as ecstasy).[11] A conviction under this provision, for a first-time offence, results in an automatic license disqualification period of 6 months and the imposition of a fine not exceeding $1,100.[12] The penalties are functionally identical to that of a low, novice or special range PCA.[13] In addition, the bill expands police powers of roadside drug detection. Previously, police required a ‘reasonable belief that a motorist may be under the influence of an illicit drug’ to subject the driver to roadside testing.[14] Police are now empowered to ‘randomly’ drug test any driver, so long as the police officer has a reasonable cause to believe that that person is driving a motor vehicle, attempting to put a motor vehicle in motion, or supervising a learner driver.[15] Failure to comply with a roadside drug test is an offence that carries similar penalties to testing positive on a roadside drug test.[16]

The offence of drug driving evidences the scholarship of William Stuntz, who describes the development of American criminal law as ‘a story of tacit cooperation between prosecutors and legislators’.[17] Criminalising the mere presence of an illicit drug in a person’s oral fluid, blood or urine reflects the expansion of criminal liability across offences in NSW, including conduct which has been long since criminalised.[18] To do so ‘raise[s] the odds of conviction’, Stuntz argues. Applied to the Drug Testing Bill, it is clear the new ‘presence’ offence is a net-widening device for police and prosecutors. Indeed, in introducing the bill, Matt Brown, Parliamentary Secretary stated: ‘There will be no need for police to prove that a person’s driving was impaired; it need only be proved that the drug was present in the person’s sample.’[19]

The effect of the Drug Testing Bill is thus twofold: it broadens the power of prosecutors in the courtroom and police on the roads. Before this ‘presence’ offence was introduced, the criminal law targeted people ‘driving under the influence of alcohol or any other drug’.[20] The leading authority on whether a person is ‘under the influence’ comes from Lord Coleridge CJ in Mair v Railway Passengers Assurance Co (Ltd).[21] To prove a person was ‘under the influence’, the prosecution has to demonstrate that the intoxicating substance had ‘disturb[ed] the quiet and equable exercise of the intellectual faculties of the man who has taken the [substance]’.[22] Under the new offence, prosecutors need only provide a positive test sample to obtain a conviction: there is no need for the prosecution to adduce any additional evidence, either physical or mental (notwithstanding the ‘honest and reasonable mistake of fact’ defence)[23] given the parameters of the offence. Likewise, the introduction of random roadside testing relieves police officers of the task of forming a reasonable belief as to whether a person is driving under the influence. Under the current laws, any person driving a motor vehicle (or putting it in motion, or supervising a learner driver) is susceptible to police drug testing.[24] Accordingly, the criminalisation of drug driving is an example of legislation that simplifies the work of prosecutors: just as proving possession of burglars’ tools is much easier than proving burglaries, so is proving ‘presence’ of a drug as opposed to its active ‘influence’.[25]

The widening of criminal liability has, of course, been welcomed by prosecutors. Indeed, it is the crux of the politician-prosecutor alliance. Legislatures have a paramount interest in supporting prosecutors, as it allows political parties to exercise ‘tough on crime’ credentials. Stuntz writes: ‘Legislators gain when they write criminal statutes in ways that benefit prosecutors. Prosecutors gain from statutes that enable them more easily to induce guilty pleas.’ The effortlessness of collecting guilty pleas for drug driving has not gone unnoticed. In Police v Darrell James Squires, Magistrate Heilpern observed that he had ‘heard many hundreds of pleas of guilty to [drug driving] over the past few months.’[26] The criminalisation of drug driving extends criminal liability from drivers whose faculties or abilities are actively impaired due to those divers with an illicit drug ‘present’ in their system. In practice, the new ‘presence’ offence (in conjunction with the rollout of random roadside testing) has made it significantly easier for prosecutors to secure convictions against drug drivers.

Criminalising ‘dangerousness’? Drug use and the risk of road crash

In this section, I argue that the offence of drug driving is neither novel nor ground-breaking in the breadth of its coverage. I argue that it is yet another manifestation of Ramsay’s pre-inchoate offences, being an offence that criminalises ‘dangerousness’ as a concept.[27] In doing so, I draw on theoretical veins of criminal scholarship that questions the criminalisation of conduct and activities that are not inherently harmful. I then contrast the putative policy objectives of the Drug Testing Bill against the available empirical evidence on drug use and road safety. Ultimately, I conclude that the target of the bill is not road safety, but, in fact, drug crime.

The criminalisation of drug driving lays within a longer continuity of offences that criminalise the concept of dangerousness. It falls within the ninth category (of nine) of preventive offences, ‘crimes of concrete endangerment’, as proposed by Ashworth and Zedner.[28] Like speeding or drink driving, the criminalisation of drug driving is underpinned by a ‘judgment about the degree of risk that is unacceptable’.[29] Certainly, there are compelling arguments for the criminal law to target conduct that is not merely harm-causing. To neglect acts that amount to ‘reckless risk-taking with respect to harms,’ Duff argues, ‘would speak with a strange moral voice.’[30] In his introduction to the bill, Brown cites a 1999 report, which revealed that almost a quarter of drivers killed in 1997 and 1998 were found to have drugs in their system.[31] Further, the attendant trauma that attaches to victims, and victims’ families and friends, received mention in the bill’s second reading speeches to both the Legislative Council and Legislative Assembly.[32] When analogous legislation was introduced in the ACT, there was similarly a strong emphasis that drug testing should be about ‘road safety and not about catching drug users and punishing them for using drugs rather than endangering other road users.’[33]

Unfortunately, this rhetoric has not carried through to the substance of the offence, resulting in a mismatch between the harm alleged (road-related injury and death) and the targeted conduct (the presence of drugs in a person’s system). This is despite, as Magistrate Heilpern notes, the intended targets of the Drug Testing Bill being ‘people who have active drugs present in their system’ or those who have had their ‘skills and sound judgment’ affected by drugs.[34] The criminalisation of drug drivers draws from and reproduces the perception that drug driving is not merely itself a dangerous act, but an act that constitutes the ‘dangerousness of the actor’.[35] The driver, who has drugs in their system, is inherently dangerous. As such, drug driving may be characterised as an example of ‘pre-crime’, an offence that ‘shifts the temporal perspective to anticipate and forestall that which has not yet occurred and may never do so.’[36] Just as preparation offences[37] target the ‘insecurity caused to others by the knowledge that others are making such preparations’, so too do drug driving laws target anxieties over road fatalities.[38] An alternate justification for the offence may also be found in Ramsay’s ‘failure to reassure’ argument, which posits that criminalisation is an appropriate response to conduct that increases the risk of ‘some eventual wrongful harm’.[39] These lines of inquiry suggests that drug driving laws are reflective of the contemporary overreach of the criminal law: rather than addressing the real wrongdoing and attendant harm of dangerous drug-affected driving, the offence creates a broad class of dangerous drug-affected individuals.

It is critical that analyses of the criminal law draw from empirical research and not just theoretical scholarship.[40] It is therefore noteworthy that the empirical studies, which analyse the impact that drug use has on crash risk, do not support the purported policy objectives of the Drug Testing Bill. Baldock’s review of the scientific literature found that ‘the majority [of culpability studies] have indicated that cannabis is not associated with an increased likelihood of culpability’.[41] Meanwhile, the two case-control studies that were reviewed produced ‘contradictory results’.[42] The purported deterrent effect of a broader criminal offence and random roadside testing has also drawn criticism. For example, the introduction of a similar ‘presence’ offence in Victoria failed to deter regular users of MDMA from driving after consuming drugs.[43] Further, there is ‘no conclusive body of literature’ that supports the proposition that ‘roadside drug testing reduces the incidence or severity of crashes’.[44] The results, or lack thereof, of this research indicates that the focus of drug driving laws is not road safety, but rather the policing of drug use. Accordingly, it reaffirms the notion that the criminal law, as developed under the politician-prosecutor alliance, is less interested in achieving certain policy outcomes, and more interested in creating and salving anxieties over community safety.

Part II

New frontiers in ‘paradigm’ offences: comparing ‘possession’ and ‘presence’

In this section, I situate the substantive offence of drug driving in the broader context of the ‘war on crime’. My analysis builds on Dubber’s concept of criminal law as a tool of ‘treatmentism’.[45] I argue that criminalising the presence of an illicit drug in a person’s system is ‘paradigmatic’ of the state’s war on crime: an offence used to ‘stamp out crime by incapacitating as many criminals as we can get our hands on’.[46] This is further problematised by the ongoing technological improvement of drug detection technologies, which effectively stretch the temporal and spatial dimensions of the offence. I conclude that substantive offence effected by the Drug Testing Bill significantly widens the net of criminalisation and conviction.

According to Dubber, the undergirding ideology of the modern criminal law is ‘treatmentism’, a framework that posits crime as a disorder — its perpetrators in need of either rehabilitation or incapacitation.[47] Accordingly the ‘war on drugs’ serves as just one front ‘in the war on crime’s widespread assault on anyone any anything the state perceives as a threat.’[48] The criminalisation of drug driving is a useful entry-point of analysis, as it adjoins the relative ‘triviality’ of traffic offences with the severity of drug crime. As a starting point, it is worth noting that local court matters, and traffic offences in particular, attract scant media coverage, judicial scrutiny or academic attention.[49] This is notwithstanding the fact that the bulk of statutory criminal offences are ‘merely regulatory’, rather than ‘truly criminal’.[50] To wit, Dubber’s scholarship provides a useful and cohesive theoretical framework for understanding and critiquing this phenomenon. Dubber asserts that the criminal law is, fundamentally, preventive and communitarian: preventive, insofar that it ‘focuses on the threat, rather than the occurrence, or harm’ and communitarian, in its emphasis on ‘eliminat[ing] threats not to persons, but to communities’.[51] Certainly, Eric Roozendaal, Minister for Roads, channels this rhetoric: ‘Drug driving and its resulting trauma cause grief and distress for not only the victims themselves but also to their families and friends’.[52] The bill’s purpose, he adds, is to ‘keep drug drivers off our roads’ (emphasis added).[53]

The statutory criminal offence effected by the Drug Testing Bill, is paradigmatic of the state’s war on crime. Possession offences, Dubber argues, are typical criminal law offences due to their low-cost, wide-reach and, ultimately, their effectiveness in ‘sweeping’ away undesirables.[54] Indeed, news reports indicate a surge in drug driving charges, particularly in regional and remote areas. For example in Wagga, a second court had to be arranged to accommodate eighty people facing drug driving charges; thirty cases were finalised in one day alone, with the remaining fifty adjourned.[55] In Armidale, in a day in May, fifteen defendants appeared before the court on drug driving charges.[56] The parallels between drug possession and drug presence are readily apparent. For example, neither ‘possession’ nor ‘presence’ of a drug involves the infliction of harm, but rather the threat of harm: in other words, ‘harm itself turns out to be the threat of harm.’[57] Both offences are ‘flexible and convenient’, requiring negligible effort on behalf of the investigating officer.[58] Both are unconcerned with the offender’s mens rea, significantly simplifying the prosecution process. It is noteworthy that the mandatory penalty directives, which attach to drug driving, echoes the criminal law’s impulse towards incapacitation, rather than rehabilitation.[59] Above all, however, both drug possession and drug driving laws operate as gateway offences into the criminal justice system.[60] As an offence that typifies the war on crime, criminalising the presence of an illicit drug in a person’s system goes significantly further than preceding possession offences. This, I explain in the following section, is a result of the simultaneous expansion of drug detection technologies and police powers.

The failure of legislators to prescribe the amount of a drug present in a person’s system required to trigger a prosecution enhances the reach and potency of drug driving laws. While the Road Transport Act outlines the prescribed concentrations of alcohol,[61] which enliven various ‘drink driving’ offences, there is no corresponding section for drug use.[62] This omission may be rooted in the fact that there is currently ‘no convincing research’ concerning the amount of a drug that needs to be consumed to cause an impairment that elevates the risk of road crash.[63] This much is tacitly acknowledged by Troy Grant, Minister for Justice and Police, who has stated: ‘A safe level of illicit drugs cannot be determined; nor can it be calculated when their effects may wear off especially if combined with other drugs and/or alcohol.’[64] As raised in Police v Carrall, the broad discretion attached to ‘presence’ means that individuals who use illicit drugs up to nine days before driving can be brought into the criminal justice system.[65] In his decision, Magistrate Heilpern posed an interesting counterfactual: ‘What if technology improves even more, so that the THC can be detected after one month, or three, or even twelve?’ Though his question concerned the applicability of the defence of honest and reasonable mistake of fact this hypothetical raises serious questions regarding the potential reach of the offence. In this way, the temporal and spatial dimensions of drug driving tend towards an ever-expanding notion of criminal liability.[66] Therefore, though the offence may remain unchanged, additional advancements in drug detection technology could silently widen the net of criminalisation and conviction.

Random Roadside Drug Testing: the expansion of police powers

In this section, I critique the device of random roadside drug testing (RRDT) as an unchallenged expansion of police powers across NSW. I start by placing policing in its broader context of crime control. I argue that the introduction of random roadside drug testing reflects the contemporary shift towards ‘more proactive community policing efforts’.[67] I then contrast the operation of RRDT against the policing of drug possession.

The introduction of RRDT, under the Drug Testing Bill, is not itself a radical departure from traditional modes of drug detection or enforcement. As Garland notes, ‘The institutional architecture of penal modernity remains firmly in place, as does the state apparatus of criminal justice. It is their deployment, their strategic functioning and their social significance that have been transformed’. Indeed, the treatmentist assault on crime is not limited to criminal legislation. Its chief enforcers are ‘composed of a multiplicity of different agencies, practices and discourses’, the NSW Police Force, the Roads and Maritime Services, drug testing laboratories and other state and private actors.[68] The increased involvement of police, tasked with RRDT, emphasises the preventive and communitarian role of policing. According to documents obtained under freedom of information laws, the RRDT regime catches about 32,000 NSW residents each year.[69] State authorities have announced that mobile drug testing will triple in 2017,[70] with the number of drivers caught under the state’s drug testing system set to rise to 97,000 in the same year.[71] Importantly, the RRDT regime continues to operate under the same premise as its antecedents: the stop, seizure and search. Its purpose is to govern the use of public streets.[72] As Dubber puts it: ‘As soon as you get into your car, even before you turn the ignition key, you have subjected yourself to intense police scrutiny’.[73] The arrival of RRDT did not alter this phenomenon; it merely amplifies the power already held by police.

The RRDT expands police powers of crime enforcement, particularly when compared to drug possession. With regard to drug possession,[74] a police officer must form a ‘reasonable suspicion’ that a person is in possession of a prohibited drug in order to stop, search and detain that person without a warrant.[75] As provided in R v Rondo: ‘reasonable suspicion is not arbitrary.’[76] This is not the case with regard to RRDT; its application is intentionally arbitrary. The threshold requirement of ‘reasonable suspicion’ acts as important safeguard, providing a threshold requirement that law enforcement must satisfy to exercise powers that would otherwise infringe upon a person’s civil liberties. Rather than drawing from the existing police powers law, the rollout of RRDT was based on the ‘successful model’ of random breath testing for alcohol first introduced to NSW in 1982.[77] The RBT regime has prevailed over unsuccessful legal challenges,[78] primarily because the laws that underpinned it were held to have been designed for the purpose of protecting the public.[79] However, as Pritchard et al. argue, the case for RRDT is weaker because of the lack of empirical evidence to connect drug driving with the risk of road injuries and fatalities.[80] For structural purposes, I have separated my analysis of the substantive offence of drug driving and its chief method of detection, RRDT. However, it is worth noting that the two — in practice — cannot be unwound or disentangled. The interplay of the substantive criminal law and police powers is the juncture at which criminal law is enforced. To wit, Dubber observed that ‘Possession… unfolds its full potential as a threat elimination device when used in conjunction with broad-sweeping police offenses.’[81] Interestingly, Dubber appeared to inadvertently anticipate the power of drug driving laws, in particular the tremendous combination of a ‘presence’ offence and RRDT. In 2001, he observed: ‘The most potent combination of modern policing is the traffic offense and possession.’[82]

Conclusion

An analysis of NSW drug driving laws provides a powerful case study into modern criminal law-making and its enforcement. At the legislative stages, the passage and terms of the Drug Testing Bill enliven the politician-prosecutor alliance.[83] The bill’s two ‘products’ — criminalising the ‘presence’ of an illicit drug in a person’s system and expanding police powers of drug detection by way of RRDT — embolden prosecutors with greater procedural and material resources. The offence itself gives insight into the galaxy of pre-inchoate offences: offences that seek to pre-empt harm by criminalising conduct alleged to be inherently dangerous. This is despite the fact that empirical studies have found no positive link between drug use and the risk of road crash or fatality.

My bifurcated analysis of drug driving and RRDT demonstrates the power of the criminal law in the courtroom and on the street. Like its antecedent, drug possession, drug driving is a paradigmatic offence of the war on crime: a street-sweeping tool designed to eliminate a massive quantum of artificial threats.[84] The offence, I argued, is further problematised by the failure of legislatures and law enforcement to prescribe a consumption threshold for prosecution. Dangerously, improvements in drug detection technology enhance its power, by facilitating the extension of drug driving laws by stealth. As Magistrate Heilpern opined, advancements in technology could potentially catch drivers who used drugs ‘after one month, or three, or even twelve’.[85] This phenomenon of extension, I note, is not limited to the substantive offence of drug driving; its partner, the RRDT regime, significantly expands the capacity of police to drug test drivers. Its function is particularly striking, when contrasted against the existing safeguards around the policing of drug possession.

Stuntz describes the criminal law as ‘a veil that hides a system that allocates criminal punishment discretionarily.’[86] To peek behind this curtain is to see the alchemy of lawmakers, prosecutors and police officers in action. It is my modest objective that this essay serve as a starting point for further inquiry into NSW drug driving laws. It has revealed the extent to which the Drug Testing Bill has significantly expanded prosecutorial discretion and police power.

[1] The facts of this case are derived from news reports: Lorna Knowles and Alison Branley, ‘Acquittal of man caught drug-driving nine days after smoking cannabis throws NSW drug laws into doubt’, Sydney Morning Herald (online), 3 February 2016 <http://www.abc.net.au/news/2016-02-02/man-caught-drug-driving-days-after-smoking-cannabis-acquitted/7133628>.

[2] See: He Kaw Teh (1985) 157 CLR 523; Nick Boyden, ‘The defence of an honest and reasonable mistake of fact’ (2008) 46(7) Law Society Journal 74.

[3] Luke McNamara, ‘Criminalisation in Australia: Building a Foundation for Normative Theorising and Principled Law Reform’ in Thomas Crofts and Arlie Loughnan (eds), Criminalisation and Criminal Responsibility in Australia (Oxford University Press, 2015) 35.

[4] William Stuntz, ‘The Pathological Politics of Criminal Law’ (2001) 100 Michigan Law Review 505.

[5] Ibid 3.

[6] Peter Ramsay, ‘Democratic Limits to Preventive Criminal Law’ in Andrew Ashworth, Lucia Zedner and Patrick Tomlin (eds), Prevention and the Limits of the Criminal Law (Oxford University Press, 2013), 214.

[7] Markus Dirk Dubber, ‘Policing Possession: The War on Crime and the End of Criminal Law’ (2001) 91 Journal of Criminal Law and Criminology 829.

[8] Ibid.

[9] Stuntz, above n 4, 7.

[10] Road Transport Act 2013 (NSW) s 111.

[11] Ibid s 4.

[12] Roads and Maritime, Drug and alcohol offences (27 January 2015) Roads & Maritime <http://www.rms.nsw.gov.au/roads/safety-rules/offences-penalties/drug-alcohol/>.

[13] Ibid.

[14] New South Wales, Parliamentary Debates, Legislative Assembly, 19 September 2006 (Matt Brown, Parliamentary Secretary).

[15] Road Transport Act 2013 (NSW) Sch 3, Div 3(6).

[16] Ibid Sch 3, Div 6.

[17] Stuntz, above n 4, 6.

[18] See, for example Road Transport (Safety and Management) Act 1999 (NSW) s 12; Traffic Act 1909 (NSW) s 5(2): Stuntz, above n 4, 29–30.

[19] New South Wales, Parliamentary Debates, Legislative Assembly, 19 September 2006 (Matt Brown, Parliamentary Secretary).

[20] See, for example: Road Transport (Safety and Management) Act 1999 (NSW) s 12; Traffic Act 1909 (NSW) s 5(2).

[21] Mair v Railway Passengers Assurance Co (Ltd) (1877) 37 LT 356; cited in Sagacious Legal Pty Ltd v Westfarmers General Insurance Ltd (No 4) [2010] FCA 482 (18 May 2010) 112–123.

[22] Mair v Railway Passengers Assurance Co (Ltd) (1877) 37 LT 356, 358.

[23] At the time of writing, the defence of reasonable and honest mistake of fact had only been successfully raised in one instance: Police v Joseph Ross Carrall (Unreported, New South Wales Local Court, Magistrate Heilpern, 1 February 2016).

[24] Road Transport Act 2013 (NSW) Sch 3, Div 3(6).

[25] Stuntz, above n 4, 37.

[26] Police v Darrell James Squire (Unreported, New South Wales Local Court, Magistrate Heilpern, 2016).

[27] Ramsay, above n 6.

[28] Andrew Ashworth and Lucia Zedner, Preventive Offences in the Criminal Law: Rationales and Limits (Oxford University Press, 2014) 101.

[29] Ibid 102.

[30] R. A. Duff, Criminal Attempts (Oxford: Oxford University Press, 1997) 134.

[31] New South Wales, Parliamentary Debates, Legislative Assembly, 19 September 2006 (Matt Brown, Parliamentary Secretary).

[32] Ibid; New South Wales, Parliamentary Debates, Legislative Council, 18 October 2006 (Eric Roozendaal, Minister for Roads).

[33] David McDonald, ‘The Policy Context of Roadside Drug Testing’ (2008) Journal of the Australasian College of Road Safety 37, 38.

[34] Police v Joseph Ross Carrall (Unreported, New South Wales Local Court, Magistrate Heilpern, 1 February 2016).

[35] Ramsay, above n 6, 216.

[36] Lucia Zedner, ‘Pre-crime and post-criminology?’ (2007) 11(2) Theoretical Criminology 261.

[37] See, for example: Criminal Code 1995 (Cth) s 101.6.

[38] Ramsay, above n 6, 217.

[39] Ibid 219.

[40] Nicola Lacey, ‘What Constitutes Criminal Law’ in Antony Duff et al, eds., The Constitution of Criminal Law (Oxford University Press, 2013), 28; McNamara, above n 3, 43.

2015) 34, 43

[41] Matthew Baldock, ‘Cannabis and the Risk of Crash Involvement’ (2008) 10 Flinders Journal of Law Reform 795, 810.

[42] Ibid.

[43] McDonald, above n 33, 39.

[44] Ibid.

[45] Dubber, above n 7, 838.

[46] Ibid 859.

[47] Ibid 838; Marcus Dirk Dubber, An Introduction to the Model Penal Code (Oxford University Press, 2nd ed, 2015).

[48] Dubber, above n 7, 837.

[49] See: Doreen McBarnet, Conviction: Law, the State and the Construction of Justice, (Macmillan, 1981) 140.

[50] David Brown, ‘Physical and Fault Elements: A New South Wales Case Study’ in Thomas Crofts and Arlie Loughnan (eds), Criminalisation and Criminal Responsibility in Australia (Oxford University Press, 2015) 13; Andrew Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2009) 116 Law Quarterly Review 225.

[51] Dubber, above n 7, 838.

[52] New South Wales, Parliamentary Debates, Legislative Council, 18 October 2006 (Eric Roozendaal, Minister for Roads).

[53] Ibid.

[54] Dubber, above n 7, 836.

[55] Ken Grimson, ‘People from all walks of life are literally walking after testing positive to driving with an illicit drug in their blood’, The Daily Advertiser (online) 29 February 2016 <http://www.dailyadvertiser.com.au/story/3759862/80-face-court-for-drugs-in-their-blood/>.

[56] Danielle Maguire, ‘Drug driver’s speech ends in fine’, The Armidale Express (online) 11 May 2016 <http://www.armidaleexpress.com.au/story/3899928/drug-drivers-speech-ends-in-fine/>.

[57] Dubber, above n 7, 834.

[58] Ibid 856.

[59] For example, first-time offenders are subject to a mandatory license disqualification period of six months: Roads and Maritime, Drug and alcohol offences (27 January 2015) Roads & Maritime <http://www.rms.nsw.gov.au/roads/safety-rules/offences-penalties/drug-alcohol/>.

[60] Dubber, above n 7, 856.

[61] Road Transport Act 2013 (NSW) s 108.

[62] Ibid s 110.

[63] McDonald, above n 33, 40.

[64] New South Wales, Parliamentary Debates, Legislative Council, 23 February 2016 (Troy Grant, Minister for Justice and Police).

[65] Police v Joseph Ross Carrall (Unreported, New South Wales Local Court, Magistrate Heilpern, 1 February 2016).

[66] Lindsay Farmer, ‘Time and Space in Criminal Law’ (2010) 13(2) New Criminal Law Review: An International and Interdisciplinary Journal 333.

[67] David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford University Press, 2001) 169

[68] Ibid 166

[69] Amy Corderoy, ‘100,000 NSW residents to be targeted in ‘wasteful, unfair’ roadside drug testing’, Sydney Morning Herald (online), 4 October 2015 <http://www.smh.com.au/national/health/hundred-thousand-nsw-residents-to-be-targeted-for-wasteful-unfair-roadside-drug-testing-20151003-gk0gyo.html>.

[70] Transport for NSW, Drugs and driving (2 February 2016), Centre for Road Safety <http://roadsafety.transport.nsw.gov.au/stayingsafe/alcoholdrugs/drugdriving/>.

[71] Corderoy, above n 69.

[72] Dubber, above n 7, 874.

[73] Ibid.

[74] Drug Misuse and Trafficking Act 1985 (NSW) s 10

[75] Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 21.

[76] R v Rondo [2001] NSWCCA 540, 53 (Smart JA).

[77] New South Wales, Parliamentary Debates, Legislative Assembly, 19 September 2006 (Matt Brown, Parliamentary Secretary).

[78] For example, the Supreme Court of Queensland in R v Demicoli [1971] Qd R 358, upheld the validity of roadside testing laws against claims that it infringed upon the ‘human right’ to refuse self-incrimination.

[79] Jeremy Pritchard et al, ‘Detouring Civil Liberties? Drug-Driving Laws in Australia’ (2010) 19(2) Griffith Law Review 330, 332.

[80] Ibid 345.

[81] Dubber, above n 7, 873.

[82] Ibid 874.

[83] Stuntz, above n 4.

[84] Dubber, above n 7, 829.

[85] Police v Joseph Ross Carrall (Unreported, New South Wales Local Court, Magistrate Heilpern, 1 February 2016).

[86] Stuntz, above n 4, 107.