What must we do if the road test "lights up" for drugs? Lawyer Silvia Petkova before FACTS

False positive drug test on the road… That means trouble, no license, no car, sometimes no job. And all this is because tests are processed slowly. And finally, when it turns out to be a false positive, the problems are only for the victim. What can we do to protect ourselves? Lawyer Silvia Petkova spoke to FAKTI.

- Lawyer Petkova, the topic of false positive tests of drivers is still relevant. Let's explain what we must do if the test “lights up“…
- First and foremost: under no circumstances should one drive under the influence of alcohol and/or drugs. In the event that the driver who received a positive result from the police test did not use drugs, it is necessary to follow the following steps:
1 - not to hand over his vehicle voluntarily; the police have the power to seize it with a seizure report, which action requires prior judicial authorization or subsequent judicial approval, as well as the presence of receivers; voluntary surrender prevents the possibility of seeking compensation for the time the driver was without his vehicle;
2 - to object if the police officers note signs of inappropriate behavior in the inspection report; a driver who has not used drugs may not have the outward signs, reactions and behavior of use, but very often police officers fill in false information in these reports in order to justify the check. In addition to filling in false information in the records, this information is often confirmed in court when they are called as witnesses in the appeal of the orders for the revocation of the license and/or temporary suspension of the vehicle registration. In my practice, I have had many cases in which, during questioning, the police officers who carried out the check point out that the driver was in an inadequate state, overexcited, with red eyes, trembling, etc. and this "doubted" them. Subsequently, when the test comes back negative and it turns out that none of this is true, there are no consequences for the police officer. And in these cases criminal liability for perjury should be borne;
3 - to insist on being accompanied to a medical facility to give a biological sample (blood and urine); often the police officers try to convince the driver that there is no point in giving a sample with arguments that if he does not give, everything will pass faster, he will "get rid" only with a fine, or that if he used even a month before the test, it will affect the result of the biological test and "it will get worse." None of this is true. If the driver has not used narcotic substances, he is not responsible, accordingly there is nothing to "finish faster", nor is there anything to "get rid of". In my practice, I have listened to literally hundreds of toxicological examinations and never once did I hear an expert confirm that a narcotic substance can stay in the blood for a month. The longest period I have come across in my practice is 10 days, and an inactive metabolite of tetrahydrobinol was found in the driver's blood and urine. This step is important not only for drivers who have not used drugs at all, but also those who, although they have, have done so more than 48 hours before the test. I continue to hold to my inner conviction that it is against all principles of criminal law to hold a person who is not under the influence of drugs, and therefore does not endanger anyone's life or health, criminally liable.
4 - VERY IMPORTANT! To appeal to the court the order of detention (if they were detained), the order to revoke the license and the order to terminate the registration of the car (if owned by the driver).

- Why is it important to appeal within 14 days?
- The appeal within the 14-day period is important from the point of view of the subsequent compensation. The law states that compensation is awarded for illegal acts of the administration. Illegality can only be established by a court. In the event that the detention order is not appealed, the opportunity to receive compensation for the time spent in custody is LOST COMPLETELY.
As for the license revocation and vehicle registration suspension orders, if the 14-day appeal period is missed, recognition of illegality is only possible in one scenario - if the act is withdrawn. For the withdrawal, a mandated act of the issuer of the order is required, which in the mass case is not issued. At the same time, there is no available and fast legal mechanism to motivate the issuer to withdraw its order. In cases where the orders are not appealed in a timely manner and are not subsequently withdrawn by their issuer, the court will not award compensation for being left without a license and without the possibility of using the car.

- How many cases are there already for compensation after false positive tests and then the blood test is negative?
- In the office I manage, we currently have 16 false positive cases pending, where we are either awaiting the results of the biological samples or are in the process of claiming false positive compensation. We also have 9 closed cases, in two of which the courts refused to award compensation precisely because the orders were not appealed within the 14-day period and were not withdrawn by their issuer.

- What can be claimed as compensation?
- The amount of the compensation depends on the specifically suffered damages - pecuniary (loss of income or failure to realize income) and non-pecuniary (stress, worry, problems with relatives who doubt whether drugs have actually been used, and the person does not want to confess, etc.). The lowest compensation we have claimed is BGN 900, and the highest - BGN 106,000.

- What practice shows. What most often gives a false positive result on the road?
- From the point of view of the type of narcotic substances for which a false positive test is most often obtained - these are amphetamine and methamphetamine. In terms of what causes false-positive samples, there are dozens of factors: improper storage of test cassettes, failure to follow the manufacturer's rules for collecting the samples, consumption of food, drink, chewing gum or cigarettes immediately before the test, use of non-prescription drugs (e.g. to relieve cold and flu symptoms, as well as anti-allergic drugs containing pseudoephedrine or pseudoephedrine hydrochloride), strong pain relievers, sleeping pills, antidepressants, local anesthetics, etc.