Roadside drug screening tests

Police may conduct random roadside drug screening tests to detect drivers under the influence of certain illicit drugs.

Police may test for the following prescribed drugs:

Driving with prescribed drug

It is an offence for a person to drive with any of these drugs in their oral fluid or blood [Road Traffic Act 1961 (SA) s 47BA; Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 16]. This includes a passenger acting as a ‘qualified supervising driver’ for a learner driver [see Motor Vehicles Act 1959 (SA) s 72A]. For details of penalties see Alcohol and drug penalties.

Any driver (or qualified supervising driver) may be required to undergo a random roadside drug screening test and tests can be conducted anywhere in South Australia [see Road Traffic Act 1961 (SA) s 47EAA].

Driving with prescribed drug where child aged under 16 present in vehicle

It is an offence for a person to drive with a prescribed drug in their oral fluid or blood, and while a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47BA(1a)].

The same penalties for this offence apply as if the person had been charged with driving with a prescribed drug in oral fluid or blood pursuant to section 47BA(1) of the Road Traffic Act 1961 (SA).

A person convicted of the offence of driving with a prescribed drug in oral fluid or blood will be required to undergo a drug dependency assessment prior to having their licence reissued at the end of the disqualification period [see Motor Vehicles Act 1959 (SA) s 79B(2)(c)(i)].

Driving under the influence (DUI)

It is an offence for a person to drive a vehicle while so much under the influence of a drug as to be incapable of exercising effective control of the vehicle [Road Traffic Act 1961 (SA) s 47(1)]. For the purpose of this offence, a person may be deemed to be incapable of exercising effective control if their physical and/or mental capabilities are appreciably impaired. Laboratory testing showing the presence of a drug in their system may form part of the evidence for this offence, but it is not essential.

Driving under the influence (DUI) while child aged under 16 present in vehicle

It is an offence for a person to drive while so much under the influence of a drug as to be incapable of exercising effective control of the vehicle, and while a child aged under 16 years is present in the vehicle [Road Traffic Act 1961 (SA) s 47(1a)].

The same penalties apply as if a person had been charged with driving under the influence pursuant to section 47(1) of the Road Traffic Act 1961 (SA).

A person convicted of this offence will be required to undergo a drug dependency assessment prior to having their licence reissued at the end of the disqualification period [Motor Vehicles Act 1959 (SA) s 79B(2)(c)(i)].

Is there a minimum amount of drugs that can be present without an offence being committed?

Unlike drink driving, where a prescribed concentration of alcohol must be present for an offence to have been committed, the presence of any amount of the drugs tested will constitute an offence of driving with a prescribed drug in oral fluid or blood. THC remains detectable for several hours after it has been consumed and methylamphetamine, MDMA and cocaine for a period of 24 hours, or longer, depending on the person.

Can I refuse a drug test?

Where a person has been required to submit to an alcotest or breath analysis [under Road Traffic Act 1961 (SA) s 47E], they may also be required to submit to a drug screening test or oral fluid analysis [Road Traffic Act 1961 (SA) ss 47EAA(1) and (2)]. It is an offence to refuse, or to fail to comply with, a request for a drug screening test, oral fluid analysis or blood test. It is also an offence to refuse, or fail to comply with, a request for a drug screening test, oral fluid analysis or blood test where a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47EAA(9a)]. For details of penalties, see Alcohol and drug penalties.

What happens with the samples taken?

All samples taken must be destroyed if there is no prosecution of any offence or at the conclusion of court proceedings. Samples taken cannot be used in DNA testing nor can they be used in relation to offences other than driving offences.

Can random saliva testing be used to detect other drugs?

Random saliva testing (drug screening testing) will only be used for the detection of THC, methylamphetamine, MDMA and cocaine. However, drivers impaired by other drugs (whether prescription or illicit) may be charged with the existing offence of driving under the influence of alcohol or drugs.

Who can conduct drug screening tests?

All uniformed police officers can conduct drug screening tests.

How will random drug screening tests be conducted?

On being stopped by police, drivers will first be required to complete an alcohol test.

Drivers may then be requested to provide a saliva sample by placing a swab in their mouth or touching it with their tongue until a sample is collected. This is referred to as a drug screening test.

The initial saliva test can be conducted at the roadside without a driver having to leave their vehicle. The sample will be screened at this stage with results being available in approximately 5 minutes.

Where a positive result is recorded from the initial drug screening test, an oral fluid sample will then be collected and sent to Forensic Science SA for further laboratory analysis.

Can I continue to drive if I have tested positive in a drug screening test?

The police have the power to impose immediate licence disqualification or suspension when they reasonably believe that a person has committed an offence against section 47BA(1) or (1a) (drug driving and drug driving with child under 16 years in motor vehicle) [Road Traffic Act 1961 (SA) s 47IAA].

In any event, a driver who tests positive for THC, methylamphetamine, MDMA or cocaine through an initial drug screening test will be advised by police not to drive until the drug is no longer detectable in their system. For THC this will be up to 4 hours and for methylamphetamine, MDMA and cocaine 24 hours.

Whenever a police officer believes a driver to be unfit to drive due to alcohol or drug consumption, they can require the driver to surrender their keys and immoblise the vehicle [see Road Traffic Act 1961 (SA) s 40K(4)].

When will further action be taken?

In the event a driver records positive results to drug testing no further action can be taken until the results of the laboratory analysis are known. This process will take several weeks but where the presence of a prescribed drug is established, the driver may then be fined or charged accordingly.

What happens if I receive an expiation notice?

For a first offence of driving with a prescribed drug in oral fluid or blood, and after the presence of the drug in oral fluid or blood has been confirmed by laboratory analysis, the driver will receive an expiation notice.

They can choose to pay the expiation notice, seek a review of the expiation notice, or elect to be prosecuted. See Expiation Fees and Fines.

If the driver pays the expiation notice (and it is a first offence, where an instant loss of licence notice has been issued), they will then be notified by the Registrar of Motor Vehicles that they are disqualified for the period outlined in the instant loss of licence notice [see Motor Vehicles Act 1959 (SA) s 139BD for the process of service and commencement of notices of disqualification]. If no instant loss of licence notice was given, then for a first offence the disqualification period is 3 months from notification from the Registrar of Motor Vehicles.

If an instant loss of licence notice has been served (under s 47IAA of the Road Traffic Act 1961 (SA) then the second offence disqualification period is 9 months, the third offence disqualification period is 1 year and 9 months, and subsequent offence disqualification period is 2 year and 9 months [Motor Vehicles Act 1959 (SA) s 81D(2)(b)]. If no notice was issued, the disqualification periods are for a second offence 12 months, for a third offence 2 years, and for subsequent offences 3 years [s 81D(2)(c)].

If the driver elects to be prosecuted instead of paying the expiation notice, the potential court ordered disqualification period increases to 6 months [Road Traffic Act 1961 (SA) s 47BA(4)(a)(ii)].

How will I know I am disqualified?

The disqualification notice is served in the first instance by ordinary post to the driver's last known address. The driver must acknowledge receipt of the disqualification notice and pay the fee. For more information, see Disqualification notice on the SA Government website.

What will happen if I don’t get the notice or fail to respond to it?

If a driver fails to comply with the notice another notice will be issued personally by a process server, which the driver will need to pay for.

If personal service is unsuccessful, the driver will be prohibited from transactions with the Department for Infrastructure and Transport until they provide acknowledgement of receipt of the notice and pay the administration and service fees.

When does the disqualification begin?

The disqualification takes effect 28 days from the date specified in the notice or 28 days from the date the notice was served. If the driver is already disqualified for another reason (for example, as part of a penalty imposed by a court), the drug driving disqualification begins once the other period of disqualification ends.

What if I receive a summons?

If the driver receives a summons to attend court, then the matter will be heard in court and they will have the opportunity to plead guilty or not guilty to the charge. If convicted, the court will determine and impose a penalty, including a disqualification period (if appropriate, and in line with any statutory requirements). Seek legal advice prior to any court appearance.