Retired Lismore magistrate David Heilpern.
Retired Lismore magistrate David Heilpern.

‘CRAZY, UNFAIR’: Former magistrate fights for law change 

FORMER Lismore magistrate David Heilpern believes it's "crazy and unfair" those who are on a prescription for medicinal cannabis cannot drive.

It's been more than four years since NSW doctors were first permitted to prescribe medicinal cannabis.

But those legally accessing cannabis risk hefty penalties if they ever get behind the wheel of a vehicle.


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Mr Heilpern, who has retired from the bench, has been lobbying for legislative change.

Distinct from driving under the influence of an illicit substance, driving with an illicit drug present in your blood is an offence that doesn't require you to be affected by the substance.

People fronting court on the latter charge often report having not consumed the drug days prior to their roadside test.

This law is resulting in actions Mr Heilpern argues has no bearing on road safety leave drivers with fines and licence disqualifications.

"There is a bill before the parliament of Victoria to exclude those with a prescription from the drug detection laws - although not of course from the 'drive under influence' provisions," Mr Heilpern said.

"I am lobbying to have the same provision in NSW.

"It seems crazy and unfair that those who are on a prescription for cannabis cannot drive even when not adversely affected.

"The dosage is daily, so it simply means that if you are one of the thousands who have been prescribed cannabis you cannot drive at all."

In lobbying for change, Mr Heilpern has been seeking people who have received a cannabis prescription and have been adversely affected by drug-driving laws.

He said "dozens" had already been in touch with him, and this is nothing new.

While he was a Magistrate, defendants would "bring their prescriptions to court and seek mercy".

Mr Heilpern said he's pushing for a broad change to our current laws, but he's hopeful there could be some reprieve in the pipeline for patients.

"My view is clear that the law needs to be changed," Mr Heilpern said.

"But I understand that it is a step-by-step process, with huge vested interests in the status quo.

"I think we should start where the case is strongest, and those who are medicinal users as opposed to recreational users have an unassailable case to be excused from these laws.

"Who would argue that a person who takes an approved medicine cannot drive at all even when it has no adverse affect on their driving ability?

"I have yet to see even the most rabid anti-drug advocate make that suggestion."

Police and road safety officials have repeatedly cited road safety concerns to justify the laws as they stand, but Mr Heilpern said he was yet to see evidence the presence of minuscule detectable amounts of a drug contributed to road casualties.

"The best that they can do is trot out two tired old arguments - that we don't want drug affected drivers on the road, and that drug users are over represented in fatalities," he said.

"Both are of course true, but are no justification for penalising those who drive with infinitesimal and immaterial levels of drugs in their systems.

"The first argument is met by the existing 'drive under the influence' laws.

"The second shows only that a cohort of drug users are irresponsible on the road.

"That should not be news to anyone.

"A sub-set of drinkers is irresponsible too.

"We don't stop all drinkers from driving. Affectation is the key."