Mobile Drug Testing - Unlawful Collection of DNA?

DISCLAIMER - I am neither a legal or medical professional and purely make some personal observations about new laws that impinge on an individual’s rights.

Does Mobile Drug Testing (MDT) represent illegal collection of DNA samples?

Mobile Drug Testing - What is it?

MDT is now being used in Australia generally in conjunction with roadside Random Breath Testing (RBT) of individuals driving vehicles.

An MDT requires a driver to provide a saliva sample by swiping the test collection device over their tongue. The device then indicates the presence of illicit / illegal drugs in the individual’s system - a positive indication generally means automatic driver license suspension for 24 hours and possible other consequences. Basically “zero tolerance” is the rule.

Unfortunately MDT tests have been found to turn up a considerable number of “false positives” reacting to “prescription medications” or even illegal drugs consumed many days beforehand.

Refusal to submit to an MDT is illegal and can result in automatic suspension of a Drivers License for 24 hours and possible arrest. States and Territories vary.

DNA Collection

Australian States & Territories have forensic legislation in place that enables the collection of DNA generally where a “serious offence” has or is believed to have been committed. What is deemed to be a serious offence is ill-defined but an RBT/MDT testing area and the tests undertaken would not normally constitute a police pull over for a serious offence.

The simplest process is usually via the collection of saliva via a buccal swab normally run around the inside cheek areas of the mouth. When undertaken the individual would normally run the swab around the mouth ten to twelve times to ensure there is sufficient material for DNA analysis.

Unlawful Collection of DNA?

Do not misunderstand me - I personally have a zero tolerance to individuals driving on public roads while under the influence of alcohol, drugs (illegal, prescribed or over-the-counter) and any other substance or condition that could affect their ability to properly control the vehicle they are driving.

HOWEVER

Is an MDT an unlawful collection of DNA - even if it is not retained or used for DNA analysis?

Some may argue that:

1. An MDT does not collect enough material for a DNA test - thus it is not a problem; however, technology is rapidly advancing in these areas;
2. “If you have nothing to hide then there is no problem”. Time and place are two key distinguishing factors between what is legal and illegal. For years people have been prosecuted for growing, carrying and consuming cannabis - yet now in some States of the USA it is legal to consume these products both for medicinal and recreational purposes. So DNA material collected now, stored and or processed properly could be used in the future to determine if you were a participant in an illegal activity that is presently legal. Your DNA is with you for life - store the DNA code as a baby and it will match your DNA code on your death bed;
3. You give blood, have pathology tests undertaken, etc, etc. - but these are not done by the Police (or other similar authorities). Further, the medical system has little reason to store samples after tests have been completed.

Should we be concerned about MDT? Maybe not now but I do believe it does infringe on our rights and in the future we may regret submitting to these tests.

Next time you have a MDT and it comes up negative - try asking for the testing device. NO is the likely answer and you may also find the Police become more interested in you.