Deviate from drug testing procedure – you might as well not test

In a stark reminder to all drug testing professionals, including NSW Police officers, Judge Scotting of the NSW District Court issued a significant ruling on 25 September 2024 regarding an appeal in a drug driving case (Jones v R [2024] NSWDC 448). This case underscores the critical importance of adhering strictly to drug testing procedures and serves as a warning to those involved in the administration of these tests.

The Initial Case

In October 2023, Mr Christopher Raymond Jones, a security guard and private investigator in New South Wales, was convicted in Burwood Local Court for his second drug driving offence within six years. Both convictions were for driving with delta-9-tetrahydrocannabinol (THC), the active ingredient in cannabis, present in his system. This conviction came before Magistrate Joy Boulos under case number 2021/278131.

Mr Jones acknowledged that he uses cannabis “daily or every second day” under a legitimate medical prescription issued in December 2019 to manage anxiety and osteoporosis. Despite the prescription, he was charged because the presence of cannabis in his system while driving is illegal under NSW law. Just as with other impairing substances such as morphine or benzodiazepines, a cannabis prescription does not permit driving under its influence. Even prescribed medications that impair driving ability, like cannabis, can lead to serious legal consequences if detected in one’s system on the road.

The Traffic Stop and Drug Test

Mr Jones was pulled over by Senior Constable James Logan (S/C Logan) of the NSW Police Force for failing to display a registration plate on a vehicle he was towing. During the traffic stop, S/C Logan performed a standard licence check and administered a breath alcohol test, which returned negative. However, an oral fluid drug test was then conducted, which returned a not-negative result for THC.

Under the NSW Police Standard Operating Procedures (SOPs) for roadside drug testing, a not-negative result from the oral fluid test requires immediate further action. The subject must be arrested and taken to a police station for a secondary test using the Draeger DrugTest 5000 machine. (At a static RDT, they usually have a ‘drug bus’ available to save time).

Police Procedures: Handling Results

The SOPs dictate how police officers should proceed based on the results of the secondary test:

• Negative Result: If the Draeger DrugTest 5000 returns a negative result, the sample must still be sent to NSW Health's Forensic and Analytical Science Service (FASS) for confirmatory testing, in compliance with the standards outlined in AS/NZS 4760:2019 and NSW Police procedures. Importantly, no prohibition notice is issued, and the driver is not immediately charged. However, if the FASS confirmatory test returns positive, the driver may be charged at that point.

• Not-Negative Result: If the Draeger machine also returns a not-negative result, a prohibition notice is issued to the driver, preventing them from driving for 24 hours. The sample is then sent to FASS for laboratory confirmation. The driver will face charges only if the laboratory confirms the presence of a prohibited drug.

Appeal and Procedural Deviations

In the case of Jones v R, significant procedural issues arose during the appeal, which resulted in Judge Scotting overturning the original conviction. The key issue involved a deviation from the established drug testing procedures.

During the drug test conducted at Ryde Police Station, Mr Jones claimed that the sponge from the drug collection head of the Draeger DrugTest 5000 detached inside his mouth, but the test was not discarded as it should have been according to the SOPs. The SOPs explicitly state that if the drug collection head becomes dislodged or contaminated, the test must be discarded and restarted with a new kit.

In this instance, however, the test continued, leading to questions about the contamination or spoliation of the results. (Section 4.11, Oral Fluid Testing SOP’s NSW Police)

Judge Scotting ruled that these procedural failures were significant enough to undermine the reliability of the test results, and thus, they could not be relied upon as evidence. The ruling highlighted that strict adherence to SOPs is essential for ensuring the validity of drug testing and the integrity of evidence used in court.

Conclusion

The outcome of this case serves as a critical reminder to law enforcement officers and drug testing professionals: deviating from drug testing procedures can invalidate results and undermine dismissals, workplace decisions, and/or prosecutions.

The meticulous collection, handling, and processing of samples are non-negotiable steps that must be followed in every instance. As Judge Scotting’s decision makes clear, failure to do so not only jeopardises legal outcomes but calls into question the entire testing process.

In drug testing, particularly in high-stakes environments like law enforcement, adhering to established procedures is not just about compliance—it’s about ensuring justice is served fairly and correctly.