Saliva screening is supposed to facilitate operations to control the use of narcotics since the law of March 14, 2011[[1]may turn out against the law. When there is a failure to take a blood sample following a positive saliva test for narcotics, preventing the driver from requesting a technical examination or expert opinion regarding a blood sample, this limits the individual to request the examination or expertise solely on the saliva analysis.
In this case, a driver was subject to a saliva test for narcotics which turned out to be positive for cannabis. This result was confirmed by a toxicological analysis of the saliva sample.
The driver was charged with driving for drug use. The criminal court sentenced him to a six-month driving license suspension on this charge. However, the driver and the public prosecutor appealed this decision. The Versailles Court of Appeal, on December 21, 2023, confirmed the judgment rendered at first instance by sentencing the individual to the same sentence. Dissatisfied with this decision, the driver filed a cassation appeal.
The judges of the Court of Cassation had to determine whether the absence of a blood sample to be taken from the driver who had reserved, following the saliva sample, the possibility of requesting a technical examination or an expert opinion irremediably compromises the rights of the latter to benefit from such a measure.
Does the failure to take a blood sample following a positive saliva result for narcotics taint the screening tests with an irregularity likely to make it impossible for the accused to exercise his rights?
The judgment highlights the material requirement to allow the accused the possibility of requesting a technical examination or a second opinion relating to the blood analysis following a first positive saliva test, even if the latter does not request , subsequently, this request. The Court makes an implicit application of the rights of the defense. Indeed, it is the responsibility of investigators to respect all of the driver’s rights and not to neglect them. The driver’s rights must not only stop at the possibility for him to request a second opinion, within five days, only on the saliva test.
When an irregularity is detected during the screening tests, the defendant may raise an exception of nullity of the drug screening by arguing that it is materially impossible for him to carry out a technical examination measure or an expert opinion on the laboratory results. .
In view of the reasoning of the judges of cassation, the drug screening tests are tainted by an irregularity (I), which makes it irremediably impossible for the accused to exercise his rights (II).
I. Drug screening tests tainted by irregularity.
First, the Court of Cassation recalls the “principle” applicable to saliva screening control operations relating to the use of narcotics based on a conglomerate of texts.
Thus, in the event that the driver responds in the affirmative, the officer or judicial police agent must take an additional blood sample. in the shortest possible time »[[10]so that the driver can reserve the right to request a technical examination or a second opinion of the blood analysis in the laboratory.
II. The irremediable impossibility for the accused to exercise his rights.
« The absence of blood sampling »[[12]do ” obstacle to achievement »[[13]for the applicant a possibility for him to request a technical laboratory examination or an expert opinion relating to a blood test. In the absence of a blood sample, his right is limited to the result of the saliva analysis within five days of notification of this result. The driver is not obliged to request a technical examination or an expert opinion of the saliva and blood analysis to which he was subjected, following receipt of the results.
Indeed, the Court of Cassation overturns the judgment of the Court of Appeal by making it clear to the trial judges that the possibility given to the accused to “ benefit (only) from the right » to request a technical examination or expertise, following notification of the result of the saliva analysis, is insufficient. The driver found it physically impossible to carry out a technical laboratory examination or a second opinion on the result of a blood test, although he should have been subject to one.
The Court of Cassation does not examine in its decision the applicant’s wish to exercise his right, because the exercise of ” his rights have (already) been irreparably compromised »[[14].
It is therefore logical that the driver was not convicted by the Court of Cassation of the offense of driving a vehicle after using drugs because the procedure was tainted by irregularity. such that his rights were irremediably compromised ».
There is a marked attack on the rights of the defense, because the judges of the Court of Cassation use strong terms that are found in certain previous decisions rendered by the Criminal Chamber[[15].
Irremediable attacks on the rights of the defense can be seen on several points:
- the applicant was unable to have five days after notification of the results of a blood test;
- he was therefore not able to ask the Public Prosecutor to carry out a technical examination or expert opinion based on a blood tube taken.
Two rights to exercise a defense were therefore violated by the investigators and by the Court of Appeal: the request for a technical examination of a blood analysis and the request for an expert opinion of this blood analysis, both carried out in laboratory.
