‘Fail to provide oral fluid sample’ charge dropped on morning of trial; costs awarded
This matter concerned a client charged with ‘failure to comply with a requirement to provide a sample of oral fluid’. The allegation was that the client, having provided a clear breath analysis sample, failed to comply with a request to provide an ‘oral fluid sample’. That is, a sample which would allow the police to determine if the client was driving after having consumed prohibited drugs.
On review of the matter it was plain that the attending police had failed to comply with the requirements of the legislation. The Road Traffic Act required the officers to first require the client to either provide, or refuse to provide, a preliminary oral fluid test. This was something that is fairly easy to miss, as both tests have similar names, but involve substantially different tests. The preliminary oral fluid test, as with a preliminary breath test, informs the officer whether it is likely the client has consumed prohibited drugs. The subsequent sample of oral fluid then provides a confirmed test result which is admissible in court.
It was clear that the charge in its current form would fail because the client could not be required by law to provide a sample of oral fluid unless the preliminary requirement had already been placed on them.
We fully prepared for the trial and travelled a substantial distance to a regional location to defend the matter. On the morning of trial, the prosecuting officer confirmed the charge would be discontinued. A substantial costs award was made. This decision affirmed our advice to the client, who was very happy with the outcome.