An Adelaide man who falsely tested positive on a roadside drug screening has been issued a three-month loss of licence, despite official follow-up laboratory results revealing he was not driving under the influence of drugs. 

Margaret Kohlhagen told ABC Radio Adelaide that her son Kevin tested positive to methamphetamine on the initial swab collected during a roadside drug test two weeks ago, despite having no drugs in his system. 

Police then collected a second saliva test to be analysed in a lab.

Kevin and his mother wanted to do an independent test to clear his name. 

“I picked him up, he was quite distressed and we tried to get blood tests done that day,” she said. 

“A doctor couldn’t get it done, I took him to the Queen Elizabeth Hospital they wouldn’t do one, we went back to the police station and they wouldn’t do one. 

“We finally went to the chemist and got a drug test and the drug test came back negative.” 

Kevin initially tested positive to methamphetamine on a roadside drug screening.(ABC News: Che Chorley)

South Australian legislation introduced in February last year means police have the authority to issue an immediate loss of licence to someone if they commit a drug driving offence, and Kevin was issued with a 24-hour immediate loss of licence by police. 

Then things became more complicated. 

“He received correspondence two days ago telling him he has lost his licence from the 28th of March for three months,” she told ABC Radio Adelaide’s Sonya Feldhoff and Jules Schiller. 

“The day after that he receives another piece of correspondence telling him that he has a negative [lab] drug test.

“So, why has he lost his licence?”

Confused by the conflicting information she and her son attempted to contact multiple agencies including Service SA and SA Police, but neither could provide answers as to why he had been disqualified despite testing negative to methamphetamine. 

“The implication of losing his job as a property manager because he can’t drive for three months, the stress level is absolutely beyond,” she said. 

Ms Kohlhagen said since Kevin’s case had gone public, he had been contacted by the Department for Infrastructure and Transport (DIT) to notify him that his licence disqualification had been cancelled. 

Drug test ‘wildly inaccurate’, lawyer says 

Criminal and traffic lawyer Karen Stanley told ABC Radio Adelaide that Kevin’s case was not unique and she and other legal professionals were concerned about how the new legislation was being used. 

“The Law Society [of South Australia] and I were very, very vocal in opposing the law and we were ignored and the law was passed and we were concerned for this exact reason,” Ms Stanley said. 

“I have lots of people calling me who are in this exact position.”

Ms Stanley said the problem with the legislation was that there were two different drug tests conducted by police, and there were questions about the accuracy of one of them. 

“The first test is done by the roadside and that’s just a drug screening test, it’s known to be wildly inaccurate,” she said.

“But if that test comes back positive that enables police to then take an oral fluid sample from someone and that sample is then sent to a lab and it’s the results of that lab test that determine whether somebody is ultimately charged.

“The problem with this new law that was brought in is that the police were able to issue essentially a three-month, or depending on whether it’s a first or second offence, a significant licence disqualification based on that initial drug screen.”

Karen Stanley says the drug driving laws in SA are problematic.  (Supplied)

Ms Stanley said the only way to have the decision revoked was to go to court, which was a costly exercise for many. 

“He’s not going to be found guilty of any offence, he’s never going to get a court-imposed disqualification or a disqualification for paying a fine because he hasn’t committed the offence,” she said. 

“This poor man really, his only option is to go to court and pay $300 and apply to a magistrate to have that disqualification notice cancelled because he will be acquitted of the offence.

“He can talk to SAPOL or Service SA and plead for them to be reasonable, but there’s nothing in the legislation that says if you’ve been issued a licence disqualification and then the actual drug test comes back negative it’s automatically cancelled.” 

The law states that police have the authority to withdraw immediate loss of licence notices in cases where they have been “wrongly issued”.

SA Police said in a statement that Kevin’s loss of licence was cancelled after Forensic Science South Australia informed him the second test was negative.

‘First I’ve heard of this’: Minister

Transport Minister Tom Koutsantonis said despite Kevin’s situation, he did not think legislative change was required, but raised concerns about communication issues between agencies.  

“I’m pretty shocked, it seems to me that there’s a level of bureaucracy here that’s not talking to each other,” Mr Koutsantonis said. 

Tom Koutsantonis says Kevin’s case raises issues around communication. (ABC News: Che Chorley)

“This is the first I’ve heard of this scenario where people are receiving a disqualification notice for an act and then the following day receiving another notice saying the act you are disqualified for didn’t actually occur. 

“SAPOL tell us when someone has been caught speeding or found to have been drink driving or had a drug test that’s positive and we act on their advice.” 

Mr Koutsantonis, who initially said he would investigate Kevin’s case, later told the ABC that records confirmed his disqualification had been cancelled. 

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