Magistrate accepts drug driving ‘honesty’ defence
A MAGISTRATE who lobbied for softer cannabis laws as a lawyer, has let off drivers charged with drug driving because they "honestly" believed marijuana would be out of their system.
Lismore magistrate David Heilpern's acceptance of the "honest and reasonable mistake of fact" defence in a recent case has surprised a senior lawyer who said it could open up a gateway for drug drivers to get off "scot-free".
Last month Mr Heilpern found Robert Nicholas Ambros Collier, 34, not guilty of driving with an illicit drug in his system despite him testing positive to THC while working as a contractor for Nimbin MardiGrass festival.
Mr Collier claimed he smoked pot 43 hours earlier and thought he would be OK to drive because of advice on the NSW Centre for Road Safety website which says cannabis can "typically be detected in saliva … for up to 12 hours after use".
"(The 12-hour advice) is nothing more than a cruel underestimation that gives people specious information, lulls them into a false sense of security, and leads to greater levels of detection, criminalisation and loss of licence," Mr Heilpern said when finding Mr Collier not guilty.
Three years ago Mr Heilpern found a Lismore man not guilty of a drug driving offence on the grounds he made a "honest and reasonable mistake of fact" that he did not have cannabis in his system. The man got behind the wheel nine days after smoking marijuana based on prior advice from a cop who told him he should wait a week before driving.
Senior criminal solicitor Michael Moussa said he was "surprised" by the not guilty verdict for Mr Collier.
"It opens up a gateway for drug users to rely on information contained as part of what is referred to as general advice on the government website - it's just general advice," he said.
"But ultimately it's a case whereby now drug users can rely on that defence - it's kind of like them saying 'well, as long as I don't drive within 12 hours then I'm scot-free', which is not the intention of … this law."
Mr Heilpern declined a request for an interview.
He was a supporter of the Nimbin HEMP Embassy for several years and spoke at rallies and a MardiGrass event while a lawyer.
He was also present at a 1994 protest as the legal representative of MardiGrass founder and drug reform campaigner Bob Hopkins, who smoked a joint outside Nimbin police station before being arrested.
A NSW Police spokeswoman yesterday said the force would not be appealing Mr Heilpern's decision in finding Mr Collier not guilty.