Drug Driving Case Won (THC)
A South Australian was driver charged with drug driving after roadside testing detected cannabis in their oral fluid. Talon Legal secured an early charge withdrawal after challenging the reliability of the confirmatory saliva sample.
Matter Snapshot
- Jurisdiction: Mount Barker Magistrates Court (traffic list).
- Charge: Drug Driving (Cannabis / THC).
- Status: Charge withdrawn before hearing.
- Key issue: Police did not comply with the Australian Standards for specimen collection and the detection and quantification of drugs in oral fluid or the Road Traffic Act 1961 (SA).
- Outcome: Charge withdrawn, no conviction and no licence disqualification arising from this charge; probationary licence conditions avoided.
Background
Our client was charged with drug driving in the Magistrates Court after a roadside saliva test detected the presence of a prescribed drug (Cannabis) in their oral fluid under section 47BA of the Road Traffic Act 1961 (SA). Following an initial roadside screening test, the police subjected our client to a confirmatory oral-fluid collection test.
We were contacted shortly after and advised the client not to plead guilty without confirming whether the police followed the strict oral fluid collection procedures contained in Schedule 1, clause 7(c) of the Road Traffic Act 1961 (SA).
On this particular occasion, our client faced even higher penalties due to a previous conviction for drink driving within the prescribed period of five years. This placed our client at risk of an increased disqualification period and the imposition of onerous probationary licence conditions.
Outcome at a Glance
- Charge withdrawn before the next hearing
- No conviction or fine imposed
- No licence disqualification
- No criminal record
How to Beat a Drug Driving Charge
We focused on the reliability of the roadside drug test and strict compliance with the testing procedures. Using the body worn video timestamps and errors forensic analysts certificates we showed multiple departures from the Australian Standard (AS/NZS 4760:2019) and strict duties imposed on police to prevent the adulteration of oral fluid samples.
We put the prosecution on notice that, given these defects, the confirmatory result was inadmissible or, at minimum, so unreliable that it could not reliably prove the presence of a prescribed drug in our client’s oral saliva beyond reasonable doubt.
Police Ignored the Australian Standards
- AS/NZS 4760 cl 2.3.3(c) – requires a visual mouth inspection and that the oral cavity be free of external substances for at least 10 minutes before collection.
- AS/NZS 4760 cl 2.3.3(b) – the collection must follow the device manufacturer’s instructions (no bare-hand handling, no improvisation).
- AS/NZS 4760 cl 2.2.5(h) – the collector must declare the collection was performed in accordance with the Standard (not borne out by the BWV).
Police did not follow the Correct Procedure in the Road Traffic Act 1961 (SA)
- Schedule 1, cl 7(c) – the officer has a duty to take reasonably practicable measures to ensure the sample is not adulterated and does not deteriorate.
- Schedule 1, cl 7(f)(v) – the analyst’s certificate must disclose any factor that might adversely affect accuracy or validity of sample; the collection defects were not disclosed.
- Section 47K(3a) – any evidentiary presumption attached to the certificate operates only “in the absence of proof to the contrary.” The police body worn video provided that contrary proof.
- Section 47EAA(2a) – where there is insufficient oral fluid or integrity concerns (e.g., “dry mouth” after prolonged attempts), police may resort to a blood sample; in this case, police used an improvised procedure.
- Regulation 32(1)(f) & (2) of the Police Regulations 2014 (SA) also mirrors the no-adulteration/no-deterioration duty and presupposes timely directions are given before collection.
Why This Worked
- Timing matters: police waited less than 5 minutes before directing our client not to take anything by way of mouth and after seeing our client smoke outside of their vehicle. Not waiting long enough contravened the the Standard’s 10-minute nil-by-mouth requirement.
- Handling matters: bare-hand swab handling, frequent removal/re-insertion, and improvised techniques such as blowing through the collection device and keeping it inside the mouth for over 30 minutes contradict manufacturer instructions and decrease reliability.
- Strict compliance with the law: the Act and Regulations impose strict duties to prevent adulteration/deterioration; where those procedures are not followed to the letter, the prosecution should not be permitted to rely on the evidentiary certificate to make out the charge. The police error was further compounded by the forensic analyst not being aware of any factor that would affect the reliability of the sample (i.e., the improvised technique, not following the requirements under the Act and Australian standards).
- Proof standard: even if a roadside screening is positive, the case lives or dies on a valid confirmatory test.
Key takeaways
- Drivers, in particular those with a prescription for medicinal cannabis products including CBD oil, should be aware that the mere presence of THC or cannabis in their oral saliva does not automatically mean they are guilty of drug driving in South Australia.
- The police must still prove every element of the offence beyond a reasonable doubt and that the strict duties under the Act and Regulations were followed.
- This is to protect motorists against evidence that is unreliable or inadmissible from being relied on by the police where the consequences to a motorist are severe.
- Body worn video footage may reveal issues with timing and procedures that often decide cases.
- Act fact and do not plead guilty without speaking to experienced traffic lawyers in Adelaide to assess if your charges can be withdrawn.
Serving All of Adelaide & Beyond
Talon Legal regularly appears in all South Australian courts and surrounding jurisdictions, including:
Charged With Drug Driving in SA?
Contact Talon Legal, expert Traffic Lawyers in Adelaide, to discuss your case for free and without obligation:
- Call (08) 7094 2021 or book a no obligation consultation.
- Understand drivers licence appeals: Guide to Drivers Licence Appeals.
If you or someone you know is charged with drug driving in South Australia, early advice is critical. Talon Legal have a proven track record of securing charge withdrawals and acquittals for even the most serious traffic and criminal cases.
