When are the Police Permitted to Drug test you?

Police do not have the power to drug test people randomly on the street for no good reason. Even after the police arrest you they do not have the right to drug test you without proper cause.

As the scope for drug testing is quite narrow, nearly all times when you are drug tested it will be because you are driving a vehicle. The police have the power under the Road Transport Act to randomly drug test anybody who is driving or intending to drive a vehicle, much in the same way the police can test for alcohol.

Exactly what happens when you face an Mobile Drug Testing Unit?

When the police first direct you to stop, they will ask you if you have used any illicit substances. They will then provide you with a drug wipe and ask you to scrape it against your tongue. This will give a presumptive reading of either positive or negative. This process is known as an oral fluid presumptive test.

It is an offence to refuse this test and you will be subject to a more serious offence of refusing to provide a sample. This test is able to detect the presence of:

• Cannabis
• Ecstasy/MDMA
• Methamphetamines

The detection of drugs is dependent on a range of factors, such as the drugs you use, how much you take, the strength of the drugs you take and how regularly you use. As a general rule, most illicit drugs will stay in your system and be detectable for around 24 hours, however, this can be extended under some circumstances.

If you give a negative sample the police will let you be on your way, provided you did not test positive for alcohol or for another traffic infringement.

What happens if you test positive?

If you give a positive sample for any illicit drugs the police will place you under arrest for the purposes of an oral fluid analysis. This is more detailed than an oral fluid presumptive test and will give an indication as to what type of illicit drug is present in the oral fluid.

At this time the police will issue you with a 24-hour driving suspension notice. The oral fluid they collected from you will be sent to a laboratory to have a more intense analysis to determine the levels of the drug that were present at the time of driving.

Can you request a blood test to challenge the swab test?

If you are certain that there are no prohibited drugs in your system, you are permitted to request a blood test be taken by a doctor. This procedure can happen either at the police station or at the hospital but in either case the blood sample needs to be taken within 4 hours from the time you were directed to stop by police. It is not mandatory to request a blood test.

What will you be charged with?

The police will then determine, based on the drug level from the analysis and your behaviour, the appropriate charge they wish to charge you with. They will either charge you with driving under the influence of a drug or driving with illicit drug present in oral fluid. This is important as the influence charge carries a higher penalty both financially and in terms of licence disqualification, being 6 months as opposed to 3 months for illicit drug present, for a first offence.

When will be required to attend court?

The process of testing your saliva or blood sample can take 4 to 6 weeks. Generally, you will receive a Court Attendance Notice in the mail if drugs are detected, or the Police will contact you to pick it up from their Police station.

It is important to ensure you are charged appropriately and a criminal lawyer can direct you to get pharmacological reports to ensure you are not treated unfairly.a