A judge 'invalidates' the drogotest for violating the rights of a driver

The recent ruling of a contentious-administrative court in Pontevedra has once again brought to the fore the background of the drug tests carried out on drivers and their level of reliability. The very novel ruling invalidates the fine for Esther Sánchez , a professor at the University of Vigo and a doctor in Biology, who tested positive for the toxic substance use test and does so by understanding, among other things, that there were failures in the review procedure of the process and that was attempted against his presumption of innocence.

The judge concludes that a series of fundamental rights of the driver were violated and the Administration is ugly due to the lack of rigor given the numerous appeals presented by Sánchez, who has always denied that she was driving under the influence of drugs. In addition, the Administration must return the 1,000 euros of fine imposed as well as the six points that were withdrawn from the card. It is a pioneering sentence in Spain.

In the ruling to which EL MUNDO has had access, the magistrate considers that the procedure was not respected with the due guarantees that ended the sanction of the woman and also gives a touch to the Administration, who reminds him that he did not give the correct answers to the driver when she began to appeal the decision to sanction her. From the Brotsanbert law firm of Alicante, which is who has commanded the process in the administrative channel, they describe this decision as "very important" while understanding "that it will represent a turning point with respect to subsequent administrative resolutions in this matter" , as specified by the lawyer Francisco Azorín .

The events happened on July 14, 2018 when Esther Sánchez was intercepted at a traffic control . The agents imposed a fine of 1,000 euros and took six points off his license for, according to the report, driving with the presence of drugs in the body, a conclusion that was reached through an analysis of saliva. He tested positive for methamphetamine , a substance extremely difficult to detect, but the subsequent counter-analysis in the laboratory tested negative for this drug but positive for cocaine and cannabis . Sánchez decided to fight in court due to the lack of responses from the State.

Two months later, through his lawyer, he presented a brief of allegations in which he denied the commission of the offending act and drew attention to the great difference in results between the two tests carried out on his saliva. He stressed that the device that was used "has not been subjected to metrological control" and that the chain of custody of the test that was carried out and that produced such disparate results was not respected .

The judge attends to all these points in his sentence. And it does it in an incontestable way. "In the initial test, carried out at the time the vehicle was stopped, it turned out that the plaintiff did not have cocaine or THC (substances with respect to which the mobile test is highly sensitive) in her body, but she did have methamphetamines ( substance more difficult to detect .) However, in the Synlab laboratory analysis carried out a few days later (when the plaintiff no longer had the possibility of requesting blood tests), a contradictory result was obtained, just the opposite: positive in cocaine and THC and negative in amphetamines. The plaintiff revealed this contradiction in the previous administrative procedure, requesting explanations and proof in this regard. But she only received in response a generic 'standard form', without a single specific reference to her specific case, "she explains.

And he adds: "This lack of motivation has rendered him defenseless . It is also concluded that, given the aforementioned contradiction in the results of the tests, not explained by the Administration, the evidence of the charge carried out has been insufficient compared to the principle of presumption of innocence that protects the plaintiff. It reveals a possible error in the chain of custody. "

"We have managed to cancel the sanction and what is also very important: we have questioned the system that is being carried out," says Azorín.

"My representative underwent the test. She tested positive for menthamphetamine, a substance she had never tried. She asked how much the blood contrast test was worth and the Civil Guard replied that about 600 euros and that one had to wait there until that they finish the control so that they could accompany her to the hospital. They also told her that if it was a false positive, in the second test of the saliva sample obtained that was sent to the laboratory, it would be negative. So my representative decided to go home. It is very striking that the Civil Guard let her go home, when she had given an alleged positive for methamphetamine at a roadblock. But it was. A few months later, the sanction came with a laboratory analysis that reported having consumed cannabis and cocaine, "recalls the lawyer.

According to the criteria of The Trust Project

• Spain
• Pontevedra
• Alicante
• Valencian Community

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