The Fairness of Mobile Drug Tests and Your Rights

By Jimmy Singh & Tayla Regan

In 2017, police have conducted about 112,000 roadside drug tests. This is expected to rise to about 200,000 each year from 2020.

The relatively new drug driving laws have criminalised driving with the mere presence of illicit drugs in your saliva, urine or blood.

Criminalising the mere presence of illicit drugs while driving in NSW is controversial because the mere presence of the drug doesn’t mean one is influenced by it to effect driving and road safety.

Drink driving criminalises those who have a particular level of concentration of alcohol in his or her breath or blood reflecting the level of impairment from driving. The drug driving laws don’t do this.

It’s arguably unfair for someone who merely has traces or the presence of an illicit drug, which doesn’t effect his or her driving capability- to then be charged, taken to court, and face the devastating prospect and impact of a criminal conviction and licence disqualification.

A licence disqualification and criminal record can, as you can imagine, ruin peoples lives. It can impact your ability to then maintain a job and personal commitments- especially when others rely on you.

For these reasons, we think it’s critical that the public are made aware of their rights and extent of powers the police are given around these drug driving laws. Any further questions can be directed to any of our drug driving lawyers.

How Long Can Illicit Drugs Stay in Your Body?

The Government claims that “cannabis can typically be detected in saliva by an MDT test stick for up to 12 hours after use. Stimulants (speed, ice and pills) can typically be detected for one to two days.” This is inconsistent with what the courts experiences of where people are being prosecuted and convicted for having consumed cannabis for well over 12 hours.

A respected Sydney Barrister, Stephen Lawrence has also expressed his concerns with this in his paper. The paper refers to the remarks and decisions of New South Wales Local Court Magistrate Heilpern “who found a man not guilty after accepting his evidence he had not smoked cannabis for nine days before failing a road side saliva test. despite the government’s claims that a positive test would not occur in those circumstances no evidence was led by the prosecution to this effect.”

The Case of Police v Joseph Ross Carrall

Mr. Carrall was charged for driving with a prescribed illicit drug present in his blood.

He was found not guilty by Local Court Magistrate Heilpern who accepted the defence of an honest and reasonable mistake of fact defence.

Mr. Carrall was earlier told by police that he would need to wait a week after smoking before he can drive. In fact the police officer told the court that he believed that the drug testing equipment detects cannabis 3 to 4 days after use.

On Mr. Carrall’s belief, he honestly believed he had to wait a week. On that basis the Magistrate accepted that Mr. Carrall held an honest and reasonable belief that he didn’t have the presence of THC in his saliva when he was stopped and charged for this offence.

The Courts express the view that people who use the drug illicitly need to be aware that if their driving some days or more afterwards, the presence of the drug may still be detected in their body, which can result in harsh penalties including a licence disqualification.

Defences for Drug Driving Charges

1. Police are not allowed to ask you to stop your car or submit to a drug test or sample where:
   1. Where you are at your home; or
   2. Where 2 hours have expired after the time police believe you were driving a car, police are then not allowed to require you to submit to a oral fluid sample (which can only be done after the ‘oral fluid test’ is done at the road side RDT).
   3. Where 4 hours have expired after the time police believe you were driving a car, police are then not allowed to require you to submit to a urine or blood test.
   4. You’ve been admitted to hospital for medical treatment in circumstances the doctor considers that requiring you to submit to a test would be prejudicial to your proper care or treatment; or
2. Where there is the presence of morphine found in your blood or urine, this was caused by consuming a substance for medical purposes which was prescribed to you by a doctor; or where it was caused by consuming a codeine-based medicinal drug purchased from a pharmacy.
3. Honest and reasonable mistake defence: this defence can be available where you honestly (but mistakenly) believed that an illicit substance, such as cannabis that you smoked a week ago would not stay in your body a week later allowing you to drive legally- provided that your belief was reasonable.
4. You can refuse to give a random drug test or oral fluid sample where you were unable to due to medical grounds.

Can the Police Request You to Stop Your Car for a Random Drug Test?

While driving a car on a road, police are allowed to stop you for the purposes of a random drug test also called a mobile drug test (MDT). This is reflected in clause 6(2) of Part 2, Division 3 of schedule 3 of the Road Transport Act 2013 (NSW).

What Happens If You Don’t Stop When Requested by Police?

Failure to stop after police have signal or requested you to attracts a penalty of up to $1,100 fine. (Clause 6(3) of Schedule 3 of the Road Transport Act 2013 (NSW)).

Do You Have to Submit to a Road Side Mobile Drug Test When Requested by Police?

After stopping you for an MDT, a police officer can then require you to submit to a test called an ‘oral fluid test’ to determine the presence of drugs in your bodily fluid (saliva, blood or urine). They can do this under clause 6(1) of Schedule 3 of the Road Transport Act 2013 (NSW). It involves the driver giving a saliva swab processed by drug testing equipment at the road side.

What Happens if the ‘Oral Fluid Test’ Indicates Drugs?

Clause 7(2) of Schedule 3 of the Road Transport Act 2013 (NSW) says that If that ‘oral fluid test’ gives a positive indication of drugs, then the police can arrest you (without a warrant), which allows them to use such force as is considered necessary to take you to either the police station or a drug testing bus nearby for purposes of requiring you to provide a second test called an ‘oral fluid sample’. This sample is then used to conduct an ‘oral fluid analysis’.

This means that the oral fluid sample is sent to a laboratory to reveal whether there is in fact an illicit drug in your bodily fluid. If the analysis reveals there to be an illicit drug, then you can expect to be charged for driving with presence of drugs in your system under section 111 of the Road Transport Act 2013 (NSW).

Interestingly, without that ‘oral fluid analysis’ result, the police are unable to prove you had a drug in your system while driving. Simply attempting to use an ‘oral fluid test’ taken from the road side (as oppose to an ‘oral fluid analysis’) indicating drugs isn’t sufficient evidence to find you guilty.

Penalties for Refusing or Failing to Give Police an Oral Fluid Test?

Failure or refusal to give that oral fluid test when requested by police attracts a penalty of up to $1,100 fine. There is no prescribed automatic disqualification period for this offence.

Failure or refusal will allow police to arrest you (without a warrant), and use such force as may be necessary to take you to the police station or other place considered desirable where you can be detained for the purposes of providing an ‘oral fluid sample’. (Clause 7 of Schedule 3 of the Road Transport Act 2013 (NSW)).

The ‘oral fluid sample’ can then be used by police to conduct an ‘oral fluid analysis’ which, as explained earlier, determines whether the oral fluid contains an illicit drug. If it does, then you can expect to be charged for driving with presence of drugs in your system.

Penalties for Refusing or Failing to Give Police An Oral Fluid Sample?

Failure or refusal to give an ‘oral fluid sample’ (for an ‘oral fluid analysis’) when requested to by police attracts harsher penalties:

Where it’s your first time offence: a $3,300 fine, and an automatic licence disqualification period of 3 years applies. The court has the discretion to reduce this to a minimum of 6 months disqualification (or longer period as it’s discretion).

If you’ve previously been convicted of a major offence within the last 5 years of this offence, then the penalties are heavier, attracting a $5,500 fine and/or 18 months imprisonment, and an automatic licence disqualification period of 5 years. The court can reduce this at it’s discretion to a minimum of 12 months disqualification. The court also has the discretion to give a longer period.

Penalties for Hindering or Obstructing Someone From Taking Blood, Urine, Oral Fluid Test or Sample?

If you prevent police from taking an oral fluid test or sample from you, the penalties is a fine of up to $2,200.

If you prevent a doctor or registered nurse from attempting to take a sample of your blood or urine, the penalty is a fine of up to $2,200.

What Happens if the Oral Fluid Analysis Comes Back Showing Drugs?

If police find THC, speed, or ecstacy (in your oral fluid, blood or urine), or where they find morphine or cocaine in your blood or urine, then you can expect to be charged for driving with presence of drugs under section 111(1) or 111(3) of the Road Transport Act 2013 (NSW).

Penalties for Driving with Presence of Drugs?

Unless the Court gives you a non-conviction, upon conviction for this offence:

• Where you have no previous major offences within the last 5 years, the maximum penalty is a fine of $2,200 and an automatic licence disqualification period of 6 months. The court has a discretion to reduce this to 3 months disqualification. The court can also impose a longer period at it’s discretion.
• Where you have a previous major offence within the last 5 years, the maximum penalty is a fine of up to $3,300, and an automatic licence disqualification period of 12 months. The Court has a discretion to reduce this down to a minimum of 6 months disqualification. The court also has a discretion to increase this period.

See our character reference letter for court template for assistance.

When Can Police Require you to Provide a Blood Sample?

Police are also allowed to use such force as may be necessary to take you to a hospital or other prescribed place where you can be detained to provide a ‘blood sample’, and in other cases a ‘urine sample’ where:

• You have attempted to provide an oral fluid sample as directed, but you have been unable to physically comply with providing police with an ‘oral fluid sample’. For example, where no oral fluid was able to be produced; or
• You’ve refused a sobriety assessment, or where you have provided a sobriety assessment but the police officer has a reasonable belief that you are under the influence of a drug.

(Clause 9 and 14 of Schedule 3 of the Road Transport Act 2013 (NSW)).

That blood or urine sample can then be used to conduct an analysis to determine any illicit drugs. A medical practitioner or registered nurse can be required to take the blood sample if the police officer requests it.

What Happens if You Fail or Refuse to Submit to a Sobriety Assessment?

Failing or refusing to submit to a sobriety assessment attracts a $1,100 fine.

What Happens if You Fail or Refuse to Submit to a Blood or Urine Sample?

In respect to failing or refusing to give a blood sample, where it is your first time offence: There is a penalty of up to $3,300 fine. There is an automatic licence disqualification period of 3 years with the court having the discretion of reducing this to a minimum of 6 months (or increasing it).

The penalties are heavier if you already have a conviction for a major offence within the last 5 years of this offence. if you fit in this category then failing or refusing to submit to a blood sample attracts a $5,500 fine and/or 18 months imprisonment, and an automatic licence disqualification period of 5 years. The court has the discretion to reduce this to a minimum of 12 months (or increase it).

In respect to failing or refusing to give a urine sample, where it is a first time offence: There is a penalty of up to $3,300 fine and/or 18 months term of imprisonment with an automatic licence disqualification period of 3 years. The court can reduce this at it’s discretion to a minimum of 6 months (or increase it).

Where you fail or refuse to give a urine sample, and where you already have a previous major offence within the last 5 years of this offence, the penalties are heavier- attracting $5,500 fine and/or 2 years imprisonment, with an automatic licence disqualification period of 5 years. The court has the discretion to reduce this to a minimum of 12 months (or it can increase it at it’s discretion).

Can You be Stopped for a Random Drug Test if Seated in a Car, But Not Driving?

The police can also stop and require you to submit to a random drug test where you’re in the driver seat of a car, on a road, you intend to drive and begin taking steps that are considered more than merely preparatory to driving.

In circumstances you’re not driving a car, but seated in the driver seat on a road, the case of Burchell v Goodall [1994] WASC 491 says that the police are not allowed to stop you, or require you to submit to a drug test.

As people who drive with the mere presence of an illicit drug do not pose a risk to other road users, they should not then be subject to this kind of punishment designed for the purposes of increasing road safety.

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