False positive drug test: current issues
In the last two years, there has been an increase in cases of false positive drug tests after testing with DrugCheck3000 or DrugTest5000. The consequences in such cases are immediate detention, personal search, temporary revocation of the driver’s license, temporary suspension of the vehicle registration, and in many cases, a search of the vehicle and home of the “drugged” driver.
At the same time, obtaining the results of biological samples (blood and urine) takes an unreasonably long time—between two and nine months, and in more extreme cases, even a year. During this time, the “guilty” driver suffers damages—both non-pecuniary, related to anxiety, stress, and feelings of injustice and hopelessness, and pecuniary, especially in cases where the driver’s license is the means of livelihood for the “guilty” party and their family.
Ultimately, however, when months later it turns out that the results of the biological tests are negative, i.e. the driver has not used prohibited substances, the damage he has suffered should be compensated. It was precisely on the occasion of a request for such compensation that on September 20, 2022, the
False positive drug test: the facts
On April 13, 2021, at 9:30 p.m. in the city of P., P. A. K. was stopped for inspection by police officers from the Regional Police Department in P., Sofia Regional Police Directorate, who informed him that he would be tested for drug use. Since K. had never used drugs, he agreed to be tested with a Dreger DrugTest 5000 device. The officers informed the driver that the test with the specified technical device should be carried out in the building of the Regional Police Department in P. The officers informed the driver that the test with the aforementioned technical device should be carried out in the building of the Regional Police Department in P. K. drove to the building of the Regional Police Department in P. himself, following the police car. The vehicle documents, registration certificate, and driving license were in the possession of the police officers, who refused to return them to him.
Upon arrival at the police station in P., one of the police officers took out the test cassette, which he held with a sheet of paper instead of gloves. K. asked him if this was appropriate, to which the police officer replied: “What’s your problem? “What’s your problem? This is a brand new sheet.”
K. provided a sample for drug testing. While waiting for the results, one of the police officers said ironically, “Now watch how your test will come back positive.” A few minutes later, the technical device did indeed show a positive result for the presence of THC (a psychoactive component of marijuana) in the saliva of the person being tested. In this regard, K. was issued a detention order, as well as orders for the application of coercive administrative measures – temporary suspension of the registration of the car he was driving for a period of 6 months, as well as temporary revocation of his driving license for a period until the issue of liability is resolved, but for no more than 18 months.
K. requested that he be given a blood test. The same employee, who performed the test, began to convince him that there was no point in taking a19> take a blood test, because with this test it will a27> become clear and all other narcotic substances that the claimant uses. K., however continued to insist to be accompanied to a41> medical facility, where to give a biological sample. After about an hour of arguments there is any or no point for the plaintiff to give a blood sample, in the end account, he was accompanied to a68> the relevant medical facility with placed auxiliary means – handcuffs with hands behind the back.
About three months later, K.’s drug test result was negative.
Seven objectively cumulative claims were filed, of which the court upheld four, namely those for:
1. property damage suffered, representing the amounts that K. paid for the blood and urine tests, as well as for the re-registration of his car;
2. non-pecuniary damages suffered as a result of the unlawful termination of the registration of the car he was driving;
3. non-pecuniary damage suffered as a result of the unlawful withdrawal of his driving licence;
4. non-pecuniary damage suffered as a result of unlawful actual detention and handcuffing.
Arguments of the court in a3> rendering the decision to award compensation for a false positive drug test
In detailed grounds set out in 16 pages, the court of first instance (Administrative Court – Sofia Region) sets out the reasons for upholding four of the claims for compensation for a false positive drug test, dividing them according to the claims brought.
Firstly, with regard to the unlawfulness of the orders for the application of coercive administrative measures as a result of a false positive drug test: temporary suspension of the registration of the vehicle driven by K. and temporary revocation of his driving license, the court notes that they were unlawfully issued, since according to the law, it is the values established by the medical examination that are decisive. At the time the orders for the application of coercive administrative measures were issued, these results were not clear, which is why such orders should not have been issued at all, as the use of narcotic substances had not been indisputably established. The damages awarded amount to BGN 300 for each unlawful order, or a total of BGN 600.
Secondly, with regard to the property damage suffered as a result of a false positive drug test, representing the cost of a medical examination, the cost of installing registration plates, a fee for putting a temporarily suspended vehicle back on the road, the court awards compensation, firstly because they have been indisputably proven by the evidence presented and, secondly, because the termination of K.’s vehicle registration has been recognized as unlawful.
Thirdly, the court finds that handcuffing K. constituted unlawful detention and unlawful use of auxiliary means. The main argument is related to the fact that this action does not fall under any of the scenarios provided for in the law, since K. did not resist, did not prevent the police officers from performing their official duties, but on the contrary he cooperated fully and complied with every police order. The compensation awarded amounts to BGN 500.
The above arguments of the court are fully shared by the supervisory authority, namely the Supreme Administrative Court, which, by issuing the confirmatory decision, laid the foundation for judicial practice concerning compensation for false positive drug tests.
Controversial points in the court decision to award compensation for a false positive drug test for drugs
The controversial points in the first instance court decision concern the claim for non-pecuniary damages in connection with an unlawful inspection that led to a false positive drug test result.
The first such point concerns the fact that, according to the law, testing for the use of narcotic substances or their analogues can only be carried out if the driver exhibits external signs, reactions, or behavior indicating such use. In other words, the absence of such signs should lead to the conclusion that the test is without factual basis and, therefore, unlawful. This point is controversial, as the case law of the courts in Bulgaria is not unanimous on this issue.
Some courts accept that a check carried out in the absence of external signs, reactions, or behavior indicating drug use is initially unlawful because it contradicts the law, manifested in the absence of factual grounds. Other courts take the opposite view, namely that the Ministry of Interior authorities have the power to carry out such checks without the presence of such signs.
In this case, given that K. has been proven not to have used narcotic substances, no such signs are observed in him, and this fact was raised when filing the claim for compensation for a false positive drug test. In this case, however, the court of last instance accepted the second argument as correct.
The second point of contention concerns taking the person for testing at the police station. On this issue, national case law is also divided, with some panels accepting that the provisions of the law require testing to be carried out at the place of inspection, and that carrying it out elsewhere constitutes a violation. Other courts accept that there is no prohibition on taking the person being checked for testing at another location, and it is precisely this thesis that the deciding court accepts.
Reasons for receiving a false positive drug test result
Among the reasons for receiving a false positive drug test, the high sensitivity of police tests should be mentioned first.
This statement applies particularly to DrugTest5000, which, in addition to cocaine, opiates, amphetamine, methamphetamine, and cannabis/marijuana, also detects benzodiazepines, methadone, and ketamine. With regard to benzodiazepines in particular, it should be noted that they are widely used in the pharmaceutical industry in drugs for the treatment of anxiety disorders and sleep disorders. The same applies to opiates, which are used in both mild painkillers sold without a prescription (e.g., some medications for treating headaches) and in stronger painkillers sold with a regular or specialized prescription.
Practice shows that a false positive drug test can also be obtained when consuming energy drinks, which do not contain any narcotic substances whatsoever.
Rules for timely organization of defense in the event of false positive drug test
Given the increasing number of cases of false positive drug tests, it is necessary to know a few practical rules that would subsequently help to ensure more effective protection.
First, when a drug test comes back positive, police officers often either fail to explain to the person being tested that they have the option of providing a biological sample (blood and urine) for testing, or, as in K.’s case, they stubbornly refuse to accompany them to a medical facility, even though they have a legal obligation to do so. Insofar as, as the court of first instance that decided K.’s case notes, according to the law, the values obtained in the medical examination are decisive, the claim that police officers fulfill their obligation to accompany the person being tested to a medical facility is of paramount importance.
The consequence of failure to provide biological samples for medical examination is recognition of the results of the test, initiation of pre-trial proceedings and almost certain conviction sentence for driving after using drugs, for which there is a penalty of deprivation a21> imprisonment of one to three years.
Secondly, the detention order must be challenged in a timely manner. “Timely” means within the statutory period, which is 14 days. The consequence of not appealing it is the inability to compensate for the damages caused by the unlawful detention as a result of the false positive drug test, because its explicit revocation is required by law for this purpose.
Thirdly, depending on the circumstances of the specific case, it may be necessary to request the preservation of recordings from the video cameras installed in police cars belonging to the Traffic Police sectors and departments. The consequence of deleting the recordings is the potential inability of the person under investigation to subsequently prove in court their allegations regarding violations committed against them by police officers.
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