STATE attorneys may have to start from scratch in drafting the proposed law for roadside drugs testing, which is proving to be a legal minefield, the Attorney-general’s office admitted yesterday.
Theano Mavromoustaki, a state legal expert involved in reviewing the proposed legislation, said after the unwelcome reception the draft received at the House Crime Committee on Wednesday, it might be necessary to go back to the drawing board.
“After the meeting we have to start again,” said Mavromoustaki. “Parliament did not look favorably at it.”
In addition to the blinding fact that ‘narcotest’ devices have a 10-15 per cent error margin, which could result in post-conviction lawsuits by citizens, there were a number of other reasons why the new law might need to be critically re-examined.
One reason was the decision to choose the Australian model
“The idea was that if it could work in a bigger country, it should work here,” said Mavromoustaki. “So we chose Australia but we ignored EU systems.”
She said 21 out of 27 EU member states had some form of drugs testing for impaired driving and that deputies felt Cyprus should go with an EU system.
Indeed, the EU is working on a project called DRUID (Driving under the Influence of Drugs, Alcohol and Medicines). It aims by 2010 to establish a yardstick measuring the impairing effect of different substances on a common scale and to provide a solid base to generate harmonized, EU-wide regulations to combat the problem.
Figures presented to the House on Wednesday said that out of the total 81 road deaths in 2006, 17.3 per cent were caused by drink driving and 7.4 per cent by drivers under the influence of drugs. This leaves 75 per cent, or three out of four, of all road deaths not caused by drink and drugs. In 2007, drugs accounted for 3.4 per cent of road deaths, with 18.2 per cent from alcohol, which means most road deaths are caused by other factors.
George Morphakis, the head of road safety issues at the Communications and Works Ministry, said the bill was nowhere near final at the moment and gave the same time frame for implementation as Mavromoustaki.
“It could change, it has not yet been finalized,” he said. “We are not talking equipment at the moment but a system. Australia has a specific procedure and we have more or less copied it.”
Morphakis said the system uses two preliminary tests. One involves taking a saliva sample. He said this would take around five minutes or even less depending on the devices being developed. By the time the law is implemented they might be even faster, he said.
“This is not going to happen today or tomorrow. It will be at least a year,” he added.
Morphakis said the second test was more accurate but could take 15-20 minutes, depending on the device.
“If the two tests are positive, a sample from the second test will be sent to the government lab for a final test. If this tests positive, we have a violation. If not then the driver is innocent,” he said.
Morphakis said the device would test for common illegal drugs such as cannabis, cocaine, opiates, and heroin.
“Some prescription drugs might be identified by the device but there is a clause in the law that says if someone has a note from a doctor and is under treatment then he’s okay,” said Morphakis.
“People on medication are advised by doctors that they shouldn’t drive at times but it’s not illegal to drive while on medication.”
But many other questions remain unanswered about roadside drug tests, although Mavromoustaki said some of these questions have been raised as part of the legal team’s concerns, and must be considered.
These might include:
l What would be the status of someone who may have taken cannabis days or weeks before the test who would not necessarily be impaired by the drug at the time of testing?
l If they were involved in an accident for any other reason, would they be prosecuted for driving under the influence of drugs even though it might not be a relevant factor days or weeks later?
l Would occasional cannabis users become targets of drug squad police after having old traces found in their system while driving?
l Given that studies show cannabis-using drivers are most likely to be young males, would this result in systematic ‘profiling’ of such drivers.
l If a driver has been tested and found positive for drink driving, would they also be drugs tested on the spot?
l Would police take into consideration that certain cannabis levels in the human body might impair one driver but not another depending on their physiology?
l If the new law exempts prescription medication but someone with high levels of such drugs causes an accident or road death, does this become a factor?
l If a driver is taking non-prescription medication such as cough syrup or ibuprofen, can they be prosecuted because they have no doctor’s prescription to hand?
l How accurate would the device be given that some legal medications can cause false positives for illegal drugs; for example, some over the counter anti-inflammatory medication can cause false positives for cannabis?
Mavromoustaki could not give answers to many of the questions, but she agreed they were valid concerns. “We do have some hesitations,” she said.
The issue of having used, say, cannabis days or weeks previously was one of the concerns that legal experts had, she admitted, although she said coming under the radar of the drugs squad as a user should not concern people.
Although it is a criminal offense to consume drugs as well as possess them in Cyprus, there is a growing trend by the authorities not to go after occasional users who are not dealing.
“There is a general trend not to prosecute first-time users,” said Mavromoustaki. “What concerns us is using and driving, which is dangerous. If it came to a drug offense they might be let off with a caution. But if they are caught again and again they will be prosecuted under drugs laws,” she added.
She also said that police would be unlikely to present drivers with drugs testing without first carrying out normal impairment tests such as asking drivers to walk a straight line.
By Jean Christou, Cyprus Mail, October 24, 2008|||Back to the drawing board for narcotests
