BACK TO THE DRAWING BOARD FOR NARCOTESTS

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 favourably 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
harmonised, 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 momen and gave the same timeframe for implementation as
Mavromoustaki.

"It could change, it has not yet been finalised," 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:

- - 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?

- - 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?

- - Would occasional cannabis users become targets of drug squad police
after having old traces found in their system while driving?

- - Given that studies show cannabis-using drivers are most likely to
be young males, would this result in systematic 'profiling' of such drivers.

- - If a driver has been tested and found positive for drink driving,
would they also be drugs tested on the spot?

- - Would police take into consideration that certain cannabis levels
in the human body might impair one driver but not another depending
on their physiology?

- - 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?

- - If a driver is taking non-prescrition medication such as cough
syrup or ibupofen, can they be prosecuted becuase they have no
doctor's prescription to hand?

- - 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 offence 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 offence 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.