These tests use a saliva swab to indicate whether THC, the psychoactive component of cannabis, methamphetamines/ice, or MDMA/ecstasy is present in a driver’s sample. RLC has a number of clients concerned that they have been improperly caught and pre-emptively punished by the procedure surrounding these tests.
Problems with Procedure
A person who tests positive to the saliva test will have their licence suspended for a 24-hour period, and they will be required to give further saliva, urine or blood for more thorough testing at a laboratory.
Those who test positive at the laboratory must face court and could be fined up to $1,100, have a conviction recorded and their licence disqualified for up to six months.
The procedure arising from a positive test result has been criticized by academics and lawyers as unclear and inconsistent. RLC has seen this inconsistency play out in the lives of its clients.
Problems with the system
Tim* was pulled over by the NSW Police twice last year and given a tongue wipe test. He was twice told he tested positive for ‘methamphetamines/MDMA’. On both occasions he was immediately suspended from driving for 24 hours and his samples were sent for further tests. At the time, Tim was taking prescribed medication for an attention disorder. After reading the leaflet included with his medication, he discovered that his medication is known to produce a false positive for methamphetamines in a saliva test. His doctor confirmed this, and sent a letter to the police to certify it. The NSW Police did not notify Tim whether his laboratory tests confirmed a result for methamphetamines. He has been left to assume they did not. * Not his real name |
Tim’s case highlights many of the problems with the current laws. Drivers may test positive for drugs they have not taken, and be unfairly punished with an immediate 24-hour suspension.
The officer at the scene will issue a suspension, regardless of the resulting problems for the driver. A suspension may cause them to miss a day at work or leave them hours from home – none of these things are reasonable consequences for an unreliable test.
There is also no timeframe for when or if police might contact the driver with the result of the lab test. This can leave people in limbo for months, wondering whether or not they will have to face a prosecution for driving under the influence of drugs.
There is a legal time limit of six months for commencing a prosecution for this offence, but none of the papers given by police to suspended drivers mention this.
Wider Inconsistencies
There are further problems associated with roadside drug testing in its current form. It is currently unclear how long a person who has been exposed to prohibited drugs should wait before driving.
The NSW Centre for Road Safety has issued a statement saying that Cannabis can be detected in a person’s system for up to 12 hours, yet a recent case found a man tested positive after smoking cannabis nine days prior. In that case, Local Court Magistrate David Heilpern stated that information about the test was scarce and “uncertain-by-design”.
Unlike tests used in Britain for example, the NSW Government’s tests do not indicate whether a person’s driving is impaired, at a safe level to operate a vehicle, or the level of drugs present in a person’s saliva. The tests show only that there is the presence of drugs.
Further, the saliva swab test is not comprehensive. It currently only detects certain drugs. It does not include cocaine, ketamine, or a variety of other popular illicit drugs.
This inconsistency extends to prescription drugs. These drugs can also be abused, but a simple swab test is only able to indicate the presence of a small number of these drugs.
These issues are becoming more urgent as the NSW Police Force prepares to increase roadside tests to from an average of 32,000 tests to approximately 100,000 per year in 2017.
As an immediate step, RLC calls on the NSW Government to make it mandatory for the NSW Police Force to notify drivers who clear the laboratory test, and to record an update to the database entry specifying that the roadside fail was a false positive.
This would reduce the lasting harm caused by flawed testing and flawed laws. The current system unfairly punishes drivers who are just as safe as any other.
