Imagine this: You are stopped by police for a random roadside drug test. You lick the strip and are told to wait a few minutes for the results. Moments later, the officer returns and says you have tested positive for drugs.
The only problem is you’ve never taken illegal drugs in your life!
It might sound implausible – but as one Sydney man recently discovered, it can and does occur.
The Plight of an Innocent Man
Steve Hunt was driving home from work when pulled over for a roadside drug test.
As someone who does not take drugs, Steve happily submitted to the test.
But the law abiding citizen got a rude shock when the officer told him there was ‘a problem.’
The officer informed Steve that he had tested positive for methylamphetamine, then placed him under arrest and took him to a nearby drug van. Despite a secondary test returning a negative result, police decided to send Steve’s sample to NSW Health for further testing, where a positive result was returned two weeks later.
Adamant that there had been a mistake, Steve asked his lawyers to have the sample retested. Two further tests were conducted at the same NSW Health lab, each returning a negative result!
Despite this, police refused to drop the case and sent it to court. At court, the police prosecutor offered ‘no evidence’ – knowing that Steve would certainly win the case.
Accordingly, the case was dismissed in court.
It was fortunate that Steve decided to fight the case – as he faced a maximum penalty of $1,100 and six months off the road, as well as a criminal conviction for drug driving if he had simply pleaded guilty as many people do.
But his ordeal still cost him $5,000 in legal fees – money which he was forced to draw out of his mortgage to prove his innocence. Perhaps his lawyers should have applied for his legal costs to be paid by police, but for some unknown reason it does not appear that an application for costs was made.
Since Mr Hunt’s case made the headlines, a number of other drivers have come forward saying that they had also tested positive for drugs which they had never taken.
Some had similar experiences to Mr Hunt – where the initial test came back positive, and subsequent tests produced negative results.
In fact, the very first person in the world to return a positive reading for a drug test was nearly convicted of drug driving on the basis of a false reading.
39-year-old John De Jong returned a positive result for methylamphetamine when he submitted to a lick test in Yarraville, near Melbourne, way back in 2004.
Mr De Jong denied ever using the substance and was taken to a drug van for a subsequent test, which indicated a positive result for cannabis.
According to Mr De Jong, he had last used cannabis a month before – meaning that it should not have been detected in a roadside lick test, which can generally only detect cannabis that has been consumed 4-6 hours earlier.
Shocked by the reading, Mr De Jong consulted an independent pathologist, who released a report showing that there could not have been cannabis in his system at the time of driving. As a result, police did not proceed with the charges.
As it was the first time roadside lick tests had been used anywhere in the world, police had arranged for the media to be present at the scene. Mr De Jong therefore found his picture splashed across the news to his embarrassment, and the media presence backfired for police.
Mr De Jong later sued police for defamation, and the matter was settled out of court for an undisclosed sum. Police were also forced to issue a ‘statement of regret’ to Mr De Jong for the error.
Mr De Jong’s case may have been the first – but it’s certainly not the last case of a driver being charged with drug driving on the basis of a false positive.
In fact, a 2006 study found that ‘no device was found to be reliable enough for roadside screening of drivers,’ and that ‘lick’ test devices ‘fail[ed] to meet the 95 per cent accuracy level originally demanded.’
Subsequent investigations have revealed that up to one-third of all drivers who initially test positive during roadside lick tests return negative readings when re-tested in drug vans.
In 2010, Victoria Police admitted that 62 out of 1618 people who tested positive for drug driving had been incorrectly charged. And in NSW, 72 out of 174 drivers tested in a Northern Rivers operation returned ‘false positives.’
Despite these serious issues, NSW Police have vowed to expand their drug testing operations, with plans to conduct 100,000 lick tests each year by 2017.