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Criminal Law Blog NSW

Roadside drug testing

Australian drivers are required to submit to roadside drug tests, but testing based on saliva samples may produce unfair results

States and territories in Australia have implemented roadside testing programs to determine whether drivers are under the influence of a drug. Drivers are considered to be under the influence if their ability to maintain safe control of the vehicle has been impaired by drug consumption.

Drivers are required to comply with roadside tests. If they do not, they place their driving privileges at risk. If they “fail” a test, they may also lose driving privileges. Additional penalties can also be assessed against drivers who refuse or fail roadside tests. Those drivers often need to consult with a lawyer to determine whether they have a defence.

Common Drug Tests

Roadside tests for alcohol usually require a driver to blow into a testing device that detects alcohol in the driver’s breath. No similar breath test detects the presence of drugs.

When a driver is visibly impaired, officers may administer field sobriety tests that are designed to determine whether the driver is under the influence. A driver who exhibits poor balance or an inability to follow instructions might be arrested on suspicion of driving under the influence of drugs.

In most cases, however, the officers have no reason to make an arrest for drug driving unless they receive a positive drug test result. Drug tests look for the presence of drugs in urine, saliva, sweat, or hair.

Saliva Tests

The most practical test to administer is a test for saliva. The test sample is obtained by placing a collector in the driver’s mouth for three-to-five minutes. If the test result is positive, drivers face a disqualification of driving privileges and a fine, or worse.

Saliva tests presently check for the presence of three drugs:  cannabis (marijuana), methamphetamine (“ice”), and MDMA (Ecstasy). Since no scientific studies have established a drug quantity that equates to being “under the influence,” states have passed laws that make it illegal to drive when any amount of the drug is present in the driver’s body.

Many people criticize the “zero tolerance” laws as being irrational. A driver who smokes cannabis might have a positive test result a week after last consuming the drug, when the driver is clearly no longer affected by it. A lawyer may be able to help the driver persuade a magistrate not to disqualify the driver when doing so would be grossly unfair.

False Positives

Saliva tests also return “false positives.” A driver might take a drug that is perfectly legal, including a prescription drug, but the saliva test will identify it as an illegal drug. Only when lab tests are completed weeks later will the mistake become apparent.

A lawyer can help drivers who face prosecution based on a roadside test result. An aggressive defence may minimize or eliminate consequences for a driver who has allegedly failed a roadside drug test.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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