Drug checking: It feels illegal, but it's not

It’s no surprise that some people are confused – or even mistrustful – about the legal status of drug checking services. After all, how can it be legal to check an illegal substance?

Not that long ago, if you had openly admitted you were planning to take ecstasy this Saturday night, there was a real possibility you’d be searched and arrested. But since the Drug and Substance Checking Legislation Act 2021 passed last November, the rules have changed. Now, it’s perfectly legal for harm reduction organisations like KnowYourStuffNZ, the NZ Drug Foundation and the Needle Exchange to check that your ecstasy actually contains MDMA, and not something much more dangerous.

The new law takes a health-based approach to drug use, and recognises that knowing what you're taking is a key way to stay safer if you're choosing to use drugs.

Most importantly, drug checking gives people a chance to talk openly about their drug use, without fear of judgement or getting in trouble. For many people, it will be the first open conversation they have ever had about drugs.

So with all that in mind, we’ve asked Drug Foundation Programmes Lead, Leah Rothman, to answer some of the most common questions we’ve heard so far:

--------------------------------------------------

Q: Is drug checking legal? How can it be legal to check an illegal substance?

Short answer, drug checking is one hundred percent legal. It used to operate in a legal grey area, but in 2020 there was a temporary law change, allowing drug checking services to operate over the summer. In 2021 the temporary change was made permanent, legalising the entire process - handing over a substance, checking it, and handing it back again.

Q: How do I know police aren’t waiting to arrest me just around the corner?

Police have publicly supported drug checking; they see it as a health measure which makes New Zealand safer. National Drug Intelligence Bureau Detective Inspector Blair Macdonald said last year that drug checking is an important harm prevention tool, and police want to do everything they can to prevent harm from drug use. Earlier this year, the NZ Police website reported that drug checking had directly contributed to a reduction in drug harm across the country.

So we’re not expecting Police to be waiting round the corner – they support drug checking. It wouldn’t be in their interest to stop it working well – not to mention they’d get a huge public backlash!

Q: What information are you collecting about me, and what will you do with it?

It’s illegal for us to collect or record any identifying information for any person who uses drug checking. We won’t ask for your name, email address or phone number. This is specified in the law, and it’s there to protect you when using this service.

However, we do collect information about the substance, and whether you choose to take it or not – because that helps to determine whether the information people are given causes them to change their behaviour. But that information is optional, and completely anonymous. It goes into a pool of answers, and none of them can be connected to any person.

Q: If I get charged with possession or another drug-related offence, and police find out I attended a drug checking event, can that information be used against me in court?

Absolutely not, and that is specifically written into the law. Attendance at a drug checking services can’t be used for any criminal proceeding. Not only is this in the law, but because we don’t record any identifying information, we can’t actually prove someone was there.

Your privacy is of utmost important to us, and we would never abuse that trust. We don’t want people to get in trouble for getting their drugs checked, because then nobody would come to get their drugs checked!.

Q: I thought it was illegal for drug checking providers to handle drugs – has that changed?

Yes, that has changed. Previously, we had to ask people to handle the substance themselves, but now they can hand it over to us and we can do it for them. That’s much more effective, because it takes practice to get just the right amount. If you let the trained staff and volunteers do it, there’s less room for error – or waste.

Q: I heard that if I hand a drug to someone else, I can be charged with supply – is that true?

No that’s not true at all. At a drug checking service, you can legally hand a substance to a volunteer or staff member, and it can legally be handed back again.

Q: Can venues and events get in trouble for offering drug checking?

Venues and events are allowed drugs on premises solely for the purposes of drug checking. Social services, events, festivals, pop-up clinics and regular drug checking clinics are all legally allowed to offer this service.

Q: Aren’t event organisers responsible for the safety of attendees? If that’s the case, how can they allow people to use drugs at their event?

Yes, they are responsible for the safety of their attendees, which is exactly why so many organisers choose to offer a drug checking service. Think of it as a health service, just like any other health service, chill-out zone or medical facility that helps look after people’s wellbeing. It also takes the pressure off emergency services, by avoiding medical emergencies later down the track.

I’ve personally spoken to security people working at events, and they tell me that with fewer dangerous drugs around, they have less aggression – which makes their jobs much easier.

Q: What will you do with my sample? Can I have it back?

We use a very small amount of your substance – about 10mg, roughly the size of a match head – to check with a reagent test (chemical that changes colour if a certain substance is detected) and/or spectrometer (science machine – more on how that works here). We can’t give you this small amount back as it may be contaminated, but you get to keep the rest of your substance. If your substance turns out to not be what you thought it was, you’re under no obligation to hand it over to us, but we do offer safe disposal options if you don’t want to keep it. This article on The Level has more information about what to expect.

Sometimes we may be unable to identify a substance. In that case, we might send it on to ESR for further tests., but that’s rare and we would always ask permission first.

Q: I always hear about drug checking services at festivals – can you get it anywhere else?

Yes, absolutely. The Drug Foundation and KnowYourStuffNZ are offering free clinics around the country, including university and polytechnic campuses as well as regular public clinics in Wellington and Auckland. It’s really important to us that everyone has access to drug checking, because we know that it saves lives and reduces harm. We would like to see regular clinics everywhere, and for everyone to feel confident using them.

Check this calendar to see if there’s a clinic near you.