CHOICE membership

Roadside Driver Drug Testing - how samples are managed

A year ago I started a conversation with NSW police about having a negative Drug Swipe Test returned to me. This has not happened to me yet but I wanted a legal response so that I was prepared.
The legislation with regards to Drug Swipe tests in NSW’s only states what must happen with a positive result, I have no concerns about this aspect.
There is no legislative mention of negative results.
After 5 months of getting no where with the police I enlisted the help of my local member.
He sent a request for a response to the Police Minister in NSW.
We still had no response by 10 Feb 2020, so I again asked my local members to follow it up.
Finally received a response but it was not what I expected.
Extract below.

“Further to our earlier correspondence regarding drug wipe tests, I have received the
attached letter from the Parliamentary Secretary for Police and Justice, Mr Mark Taylor, in
response to my enquiry on your behalf.
Mr Taylor advises that drug wipes are purchased by the NSW Police Force and remain
their property at all times.
Thank you for taking the time to bring this matter to my attention.”

I thought I paid for Government services through my taxes.
Just to be flippant, If I get shot by police do I have to give the bullet back?
What about other state services?

Thoughts!!

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What is the main reason for wanting the drug swipe back? It is DNA collection/databasing concerns?

I wonder if the drug swipe has been disposed of and the response ‘drug wipes are purchased by the NSW Police Force’ means they can do with it as they see fit…such as throwing it out after its use.

Also, my understanding is if a test is negative, the test remain anonymous (that is it isn’t linked to any personal information). It is only when a positive test results that personal information is obtained and used to catalogue the test sample.

The negative test if therefore no different to say walking or being in a public place, eating in a restaurant etc where one sheds skin, hair etc leaving an anonymous DNA trail.

Edit: The UK government has implemented a DNA collection database where any DNA found at a crime scene is collected, tested and catalogued for future reference. If one gets on the wrong side of the law in the UK, a DNA sample can be collected, tested and compared to the crime scene DNA database. Such allows the UK police to see if a criminal has committed any other offences. From information available and unlike TV crime/police soapies, the UK police can’t collect DNA from anyone or everyone…only those which have been on the wrong side of the law. It appears that Australia doesn’t have a scheme of this scale…and even if it did, only if your drug yest was positive could you DNA be included on in the database.

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Hi @malmobbs.
Please note the topic title has been updated to more closely reflect your concern. What happens to the used swipe test samples?

You have noted clearly that as part of the test kit the swab belongs to NSW Police.

Queensland Police has a public statement of how it proceeds.
https://www.police.qld.gov.au/initiatives/road-safety/drug-driving

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@malmobbs

I’ll second that question; what do you need to be prepared for in this regard?

Also wondering

When the test was conducted did they take your details? If they did not how would they be able to return the results?

That reads like one of the most appallingly dismissive responses of all time, reflecting the deep seated arrogance of most of our governments. Certainly gave short shrift to the question.

Time and again that expectation many of us still have is shown to be erroneous. Evidence shows our taxes are for pollie pay, perks, pensions, some rorting but everything else is user pays. This is carried on by pollies of all persuasions, they politely call it ‘cost recovery’ rather than ‘doing the electorate’.

If the test was anonymous it would seem they should have responded accordingly.

If the test swab was identifiable I would go back to your local member and ask him/her the hard questions in writing as to why s/he thinks that response is OK, and if you don’t mind getting him/her off side why s/he seems to have mindlessly passed papers back and forth across the staffer’s desk rather than provide a proper answer. At the least a report on the swab seems justified if not the physical swab itself. Imagine the storage costs and thus the security to assure no mere citizen got into the stores! A good question to pose why they spend on that when there is nothing to prosecute.

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Thinking a bit more…if the negative test is anonymous and say the police kept all the drug swipe samples, it would be near impossible for them to return the drug swipe used on you unless they take a sample of your DNA and then test every sample they have collected and in their posssession. This would definitely give the police an opportunity to categorise and database your DNA.

On the flip side, if they decided to give you any used drug swipe they had (to passify your complaint) and you tested it to find out it wasn’t your swipe/DNA, then this would make front page news. Imagine the media storm if it was found that police was indiscriminately giving away used drup swipes which could have diseases or other individuals DNA.

The other question is if you had concerns, why not ask for the negative result drug swipe immediately after the test was completed. I suspect the police would have been obliging if it was negative and one would definitely have the one used during the test.

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Perhaps Qld is different on this point. Per my earlier link. It is worth reading.

Can a saliva sample be used for other purposes?

No. Saliva samples obtained from a roadside drug test can be used only to detect drug driving and will result in a traffic offence only if a positive result is returned.
All saliva specimens obtained from roadside drug testing will be destroyed once they are no longer required.

Should NSW and other states be any different? :wink:

It’s a fine line between the community imposing standards and providing individual protections. Innocent until proven guilty is not relevant if the perpetrator evades identification and the rules of evidence.

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The comment was made in relation to the UK scheme, whilst noting that Australia doesn’t have a similar scheme. If Australia adopted the UK type database, than this comment may prove to be possible.

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What is the main reason for wanting the drug swipe back? It is DNA collection/databasing concerns?

Yes and also having control over what belongs to me.
With regards to the process being anonymous, when you are pulled over the Police have already taken a photo of your car rego plates and run it through the system. So they already know who the car should belong to. Then they ask you for your license which shows who you are. So information has already been collected (for good or bad)

I’ll second that question; what do you need to be prepared for in this regard?

I realise that the Police officers at the testing unit are acting in accordance with the Standard Operating Procedures that states that they do not hand back Drug Swipe Tests,
but those procedures do not have any legal backing. So I would have liked to have a letter from the Police minister or Commissioner stating that it was alright to hand a negative result back to it’s owner.

Honest question, since that is recorded is it ‘this person has been tested’ or is it linked to the [negative] physical swab’s ID so it could be identified as you, by someone with access (hacked or authorised)?

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Why is there a concern when the NSW police procedures are very clear that the samples collected:

A simple observation that would appear to have a basis in law somewhere deep in our legal system. A consumer issue at this point in time? Perhaps not.

In looking around what is topical on the web, there are many gripes concerning the use of roadside drug testing. No concerns in Oz at the top of the piles related to how the swabs or other samples might be used for DNA analysis.

If such a concern exits, it would appear to be a much broader one concerning police/government collection of DNA from all sources with or without the knowledge and approval of individuals.

I’m confused as to the comment on ownership of the samples once taken. The test kit is the property of the NSW Police. The logic that as a tax payer we own the kits over any right of ownership in favour of NSW police seems an uncommon point of view. Perhaps a court of law might determine otherwise. It would seem unlikely.

Perhaps the key question is to ensure negative samples are appropriately disposed of and that there is no record relating the sample (other than the clear result) to the individual tested.

P.S.
I guess those of us who may have undiscovered crimes have the most to loose if current legislation is changed to enable DNA profiling of the whole population. All in the interest of the government delivering a better user experience to the tax payer? :thinking:

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Do you have any evidence that police have photographed everyone they pull over for a RBT/RDT and then catalogue each swab with the vehicle…which seems to go against police policies and potentially legislative testing requirements?

It is worth noting that if we subscribe to the conspiracy that police do catalogue and covertly gather DNA against photos of vehicles, how do the same police know the registered owner is driving and is that being tested. What happens in the case of business registered vehicles or hire cars, where the registered owner isn’t the driver?

If you are worried about who may get your DNA, how do you protect your anonymity when out and about as everyone loses body particles containing DNA all the time. If one is worried about what the police may do, how about visit to a doctor/hospital, restaurants, retail outlets, Apple/Google etc where one inadvertently leaves DNA as they have the same opportunity to covertly collect ones DNA and link it to all other personal information they may have…and give it to the police.

I personally wouldn’t lose sleep over it.

My experience of DNA tracing in family history. We all have second cousins somewhere who have their DNA in the greater data bases of the internet.

Legal access and use of this data is being tested in a number of instances in the USA. Add to this the development of more comprehensive national data bases for ‘National Security’. Note that the guiding hand of Home Security is an ex Police Officer.

Perhaps we should be looking elsewhere? It is not the collection that should be a concern. It is what our statutes and legal system permit. It seems unlikely we can prevent the collection from ever occurring. Whether it can be used as evidence in a court might be the more important defence?

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That was not the statement. The statement was

They do that 24 x 7 wherever convenient to catch unregistered and stolen vehicles.

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The test kits may be owned by the Govt/Police but the sample on them is perhaps the concern for right of ownership if there is no legal reason to retain that sample. They could of course legislate to retain ownership of the sample even in cases where no adverse finding was made ie blanket collection of data. Would we as citizen be happy with that level of retention when innocent? Of course if a positive finding has been made it then becomes evidence and the Police do have a right and a legal need to retain that evidence.

The same could be said of fingerprints obtained to exclude a person/s from investigation. This may require retention until a final Court decision has been made of the person/s responsible for the offence, there may be engagements/arguments during Court proceeding about others participation and so data may need to be retained for that purpose until finalised. But would it be expected that this data is then retained when it clearly had no further use for what it was intended for. Once all needed use had been made to exclude the persons/s they should have the right to have the data/specimens deleted or destroyed.

If someone has committed an offence then retaining biometric data is the correct process.

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My original topic heading was “who owns your DNA” but this was changed by others to more reflect what I was saying
I believe that I legally own my DNA and I should be the one to decide were it goes.
I never indicated that the Police are collecting DNA Data other than when the result is positive.
What I said was that already held data is a accessed when you are stopped for Breath/Drug testing and that the last step in what could be a privacy issue is the taking of a sample of your DNA.
As the legislation does not reference a negative result and what happen to it, my thoughts were that if I asked for it I would be given it back as it is legally mine.
This would have, I had hoped be a simple and civil response from someone in Authority
in the police force.
As you can see the response from Mr Taylor, which took over nine months, was left field as far as I was concerned.

What I am going to do is respond to Mr Taylor and ask that as the Drug swipe belongs to the NSW police that they remove my DNA sample and hand it back to me and they keep their swipe. If they are unable to separate it then I will spray it with 90% IPA (alcohol) which I use in my business.
I have no evidence that samples are being correlated to their owners, but the potential is there.
I value my privacy and go to great lengths to keep it so, No Facebook, No Google, No mobile phone, Nothing in the waste with identifying info, No one but Police and RTA photocopying my license, landline number withheld.
You may also remember that in the early bays of breath testing the Police gave you back the tube that you blew into. (did they own that? )
Will keep you updated on any further response from my local member or someone else from the Government

I suppose in some respects that it already occurs through the back door as outlined by

with relation to samples collected through genealogy type websites where one can try and identify one’s hereditary line.

Would I use such services for a bit of fun, a definite no.

Lets assume that the police force conspires and is cataloguing everyone’s DNA from road side drug (and alcohol testing) or any contact with the public.

A court would also need to determine whether a sample was lawfully taken. While I am not a lawyer, experience should that where the police don’t have such powers, it is likely that the DNA evidence would be admissible to the court.

Should in the future any government take the risk in legislating such, it is unlikely that such legislation would be retrospective to protect the police from past illegal behaviour (and ability to use illegally obtained and tested samples).

What evidence do you have that the ‘police are collecting DNA Data other than when the result is positive’. This seems a profound allegation which indicates that your local police are collecting and processing samples illegally.

In relation to who owns the DNA, this is a very tricky question and is not something that could be resolved by discussions in this forum. It is likely to be something that the High Court would need to test and provide a legal interpretation of.

On the flip side, if one owns their DNA and say commits a crime, it is unlikely that one could argue that the police obtained one’s DNA without one’s consent if it was linked to a crime. This seems to indicate that any DNA we leave around (anywhere we go) may not be legally ours in all cases.

Just in relation to ownership, here an an article which indicates that it may not be our own to claim (note: international examples)…

and the ABC also covered it a few years ago…

The University of Melbourne has also penned an article on DNA ownership as well…

This article states

Case law in Australia states that there is no ownership of the body or body parts. The reasoning is that after death a body must be buried swiftly, and this could be delayed if family members or executors owned the body. However, human bodies or parts can be the subject of property rights where work or skill has been used to transform them, for example into an exhibit.

If the University of Melbourne article is correct, you don’t own your DNA (as it is body or body parts)…but again, it is possibly something for Courts to ultimately make a determination.