Drug-driving cases potentially in jeopardy as ACT Magistrates Court acquits Karlene Helmling

However, the directorate responsible for the laboratory has sought to dispel concerns.

The issue emerged in the ACT Magistrates Court case of Karlene Helmling, who was this week acquitted of drug-driving despite returning a positive test after a traffic stop in Kambah.

Ms Helmling pleaded not guilty to the charge and gave evidence she had never knowingly consumed methylamphetamine.

She said she had, the day before the alleged offence in April 2019, inadvertently walked into a room where five people were smoking something from a glass pipe.

Ms Helmling said she left the room after feeling a burning sensation in her nose and waited outside for one of the pipe smokers, with whom she also shared a drink bottle before driving the next day.

Lachlan Kite, from the ACT government analytical laboratory, told the court its drug test results only reported the presence of methylamphetamine, not the concentration.

Mr Kite said the laboratory had a "cut-off" of four nanograms per millilitre for that drug, effectively producing a positive test result for anything at or above that level.

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Defence barrister Steven Whybrow SC told the court this was inconsistent with Australian Standards, which required a negative result to be returned unless methylamphetamine was detected at a concentration at or above 25 nanograms per millilitre.

He also submitted that the ACT Legislative Assembly could not have intended to criminalise "any presence, however minuscule, of a prescribed drug in a driver's oral fluid".

That would in fact be contrary, he said, to the "clear intention" of the relevant legislation, which was designed to detect drugs taken immediately prior to a person driving rather than the residual presence of substances consumed days or weeks earlier.

Mr Whybrow tendered an unchallenged report by experienced pharmacologist and forensic toxicologist Michael Robertson, who explained that the Australian Standards cut-off "should be high enough to eliminate positive results from inadvertent exposure to the drug".

"Dr Robertson's report provided a cogent and persuasive basis for a cut-off of 25ng/ml," magistrate Glenn Theakston wrote in his decision to acquit Ms Helmling.

"More relevantly for this case, it also explained why a concentration of 4ng/ml was well below what would be of significance for road safety."

Ultimately, Mr Theakston could not be satisfied a positive result based on the laboratory's lower cut-off meant, under the territory's drug-driving offence provision, that Ms Helmling had methylamphetamine in her system.

The magistrate did say, however, that "different evidence may yield different results in future matters".

Mr Theakston also found Ms Helmling had established another defence, with her evidence leaving open the possibility she had been exposed to methylamphetamine in a way "she could not reasonably have been expected to guard against".

Following Ms Helmling's acquittal, Mr Whybrow told The Canberra Times the magistrate's decision did not mean "people should feel free to take drugs and drive".

"Impairment can be measured in many ways and I suspect the government analytical laboratory will act expeditiously to change its testing protocols to bring them in line with the [Australian] Standard," he said.

However, an ACT Health spokeswoman said the Australian Standard referred to in the case was "not relevant to the reporting of results by [the laboratory]", despite having "broad application".

"The ACT government analytical laboratory accurately measures the quantity of methamphetamine in the sample," she said.

"ACTGAL is a fully accredited laboratory by the National Association of Testing Authorities and all testing meets the requirements of its certification.

"ACTGAL provides accurate, certified results but does not provide advice on the effect of those results on the impairment of an individual."

In addition, an ACT government spokesman said there were "no proposed changes to drug testing requirements prescribed under the road transport legislation currently being considered".

"The ACT will continue to monitor national and international best practice research and initiatives to address road trauma caused by drug-driving," the spokesman said.

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