After being stopped by police on Main South Road and required to submit to a random drug screening test, a female driver was told that she had recorded a positive reading for THC (cannabis).  As a result, the police required her to provide a sample of her oral fluid for analysis and then served her with a Driver Direction Notice which prevented her from driving for a period of 24 hours, along with a three month Licence Disqualification to commence 28 days later.

But when the oral fluid sample was eventually analysed, the result was that no drug was detected.

This case raises significant questions about the reliability of the procedure used by police for roadside drug tests and the hardship that can occur when police are empowered to disqualify a person from driving before they have been convicted by a Court.

 

 

When can police conduct a random drug test?

In South Australia the police can stop anyone who is driving a motor vehicle for the purpose of conducting a random alcohol or drug test.  Where it is a random test, the police officer must be in uniform when giving the direction to stop the driver, and if they are themselves in a vehicle it must be marked as a police vehicle or display flashing lights or sound an alarm.  It is also a requirement that the police officer has an approved alcotest apparatus in their possession (which is the device used to find out whether the driver might be over the legal limit).

A driver cannot be required to submit to a random drug test unless they have first undergone an alcotest or a breath analysis test.  As an alcotest is only a screening test, these results cannot be used to actually prove a person’s blood alcohol concentration, however, the results of a breath analysis test are used and relied upon by the police as evidence to prove a person’s blood alcohol reading. Once a police officer has submitted a person to an alcotest or breath analysis test, they are within their rights to request that the person then submit to a drug screening test.

It is important to note that there are other circumstances that exist where the police can request that a person submits to an alcotest, breath analysis test and drug screening test without the need to satisfy the requirements of random testing procedures. This can occur when a police officer believes on reasonable grounds that the person has committed what is described as a ‘prescribed offence’, meaning that they have behaved in a manner that indicates an impaired driving ability, or that they have been involved as a driver in an accident in the preceding 8 hours. If a police officer believes on reasonable grounds that a prescribed offence has been committed within the preceding 8 hours, they have the authority to require a driver to submit to an alcotest, breath analysis test or drug screening test regardless of whether a person was driving at the time of the request.

 

How do police conduct a drug screening test?

When the police randomly stop a driver, before they can require that person to provide a sample of their oral fluid for analysis, they must conduct a drug screening test.  This involves using an approved drug screening test kit where the driver has to swipe their tongue and follow a specific process. The drug screening test will then show whether there is a positive reading which indicates the presence of a prescribed drug.

The screening test does not indicate the concentration of any drug, and like the alcotest, it cannot be used to prove that a person was driving with a prescribed drug in their system. However, if the drug screening test indicates a positive result for a prescribed drug, the police then have the power to direct the person to submit to an oral fluid analysis test. This involves a person placing a cotton swab in their mouth for several minutes which absorbs their saliva. The police then take that person’s sample and send it to Forensic Science SA for it to be tested in order to confirm whether a prescribed drug was in a person’s oral fluid at the time that they were driving.

Whilst the police have a duty to ensure that the oral fluid sample is taken by a police officer or an approved courier to Forensic Science SA as soon as reasonably practicable, in some cases a person can be left waiting for a number of weeks to confirm whether their sample contained a prescribed drug.

Although a person may not have consumed any drug, any delay on the part of police or Forensic Science SA could mean that the person may have already started serving the police imposed disqualification which for most drug driving cases commences 28 days after the drug test occurred.

 

The power of the Police to impose a licence disqualification

The police have the authority to impose an Immediate Licence Disqualification Notice if they reasonably suspect that a person has committed a drink driving or a drug driving offence.

This is despite the fact that the person hasn’t had the chance to verify the testing procedure or any other evidence, and before they have been able to challenge the case in Court.  Most significantly, the Immediate Licence Disqualification Notice is issued even before the analysis of their oral fluid has been undertaken and the results are known.

If a person continues to drive after being issued with an Immediate Licence Disqualification Notice by the police, that person would be liable to a penalty of imprisonment.

 

How can a Police-imposed disqualification be set aside?

To have a police-imposed disqualification or an ‘immediate loss of licence’ set aside, a person can apply to the Magistrates Court for an order that the disqualification be ‘lifted’ or to reduce the period of disqualification.

To be successful with this application, the person must demonstrate that there is a reasonable prospect that they would be found not guilty of the offence or that the offence was trifling. It is advisable for drivers to seek legal advice and representation when making this application to the Court.

 

When can the Police direct a person not to drive?

As mentioned above, not only did the police issue the female driver with an immediate loss of licence notice, the police officer also provided the female with a ‘Driver Direction Notice’ which directed her not to drive a vehicle for a period of 24 hours after the drug test.

The police have the authority to direct a person not to drive in certain situations, which include if a police officer believes on reasonable grounds that the driver is unfit to drive due to alcohol and drug consumption.

A police officer can direct the driver to secure the car and surrender the keys, immobilise the car and direct the person not to drive any other vehicle until permitted to do so by the police. If a person drives in contravention of such a direction, they are liable for a fine of up to $5,000.

 

What happened in this case?

In the case of our client who recorded a positive reading for THC during the random drug screening test and was issued with both a Driver Direction Notice and an Immediate Licence Disqualification Notice by police, the subsequent analysis of her oral fluid revealed that no drug was detected in her system.

For almost everyone with a driver’s licence, having their ability to drive taken away by the police will have a significant impact on their life. This is particularly the case when a person requires their driver’s licence for their employment or for family commitments.

Even if a person subsequently proves that they had not committed an offence, in most cases it is not possible to obtain any form of compensation for the losses that they might suffer as a result of having their driver’s licence disqualified by the police.

This case demonstrates why the results of either an alcohol or drug tests by police aren’t always reliable.  Websters Lawyers are experienced in reviewing the evidence in such cases and advising on whether it appears there has been a failure by police to follow required procedures.  Where a person has received an Immediate Licence Disqualification Notice from the police, getting prompt legal advice can mean that they don’t spend any unnecessary time off the road where a prosecution may fail or where a viable defence is available.  For advice on any sort of driving issue, a specialist traffic lawyer is available by calling Websters Lawyers on 8231 1363.