Draeger says drug testing device that produced false positives not the same as one used by police

On May 6, Canadian media–including The GrowthOp–breathlessly reported that lawyers at Acumen Law had tested the federally approved Drager DrugTest 5000, which subsequently showed false positives for opioids, cocaine and other drugs after subjects consumed benign items such as Tim Hortons’ poppyseed cake, CBD extract and a particular tea.

Lee admits that the firm’s device was purchased from the U.S., but disputes the notion that there is a difference between the device tested by Acumen and the ones used by Canadian law enforcement. “It’s the same threshold levels to trigger a positive reading on our device as it is in the Canadian programming,” Lee told The GrowthOp.

“It’s the same device that’s used in Canada–it looks the same, it acts the same, it is the same. The difference between them is programming. Ours is the law enforcement version–it is not the workplace version. I’m not going to say how I know that, because I don’t want Draeger to know where I got it from, and because I don’t want anyone to get in trouble. But it is a law enforcement version,” she insists.

Doroshenko also declined to name the provider, noting via email that the purchase was made “from a police supplier and is police-approved for the United States,” and that acquiring the device “wasn’t easy.”

The Opiate Dispute

Velichover says it’s true that consuming poppy seeds can yield a false positive for opiates on a test, but this is not a problem exclusive to the Draeger DrugTest 5000.

“There are traces of opiates in poppyseeds,” Velichover explains, which can result in a false positive on many drug tests. “But none of that really matters in Canada, because we don’t test for opiates. There’s just no test for that whatsoever,” she says.

Velichover says the lawyers are using scare tactics that misrepresent the reality of roadside testing.

“Currently, police are only testing for THC and cocaine. But the point is that [Lee and Doroshenko] are comfortable making people think that they’re going to eat a bagel and then test positive on the roadsides, when law enforcement is not even testing for opiates,” she says.

Lee believes that the poppyseeds are beside the point, but they do call attention to what she says are inconsistencies in the device’s results.

“As far as concerns people who are driving down the road, poppyseeds aren’t going to get anybody arrested based on the current programming of the device,” says Lee, but adds that “the government, of course, at any point, can ask for that to be changed.”

In the meantime, Lee says some drivers “are still going to get false positives for cocaine and for cannabis, which means that the results of our tests still show that there are going to be false arrests.”

Coca tea and CBD

Dorochenko reported over the weekend  that a test subject had consumed a cup of coca tea and tested positive for cocaine.

Velichover contends that a subject would have to drink “a ridiculous amount” of coca leaf tea for the Draeger to return a positive test for cocaine, and that the results of Lee and Doroshenko’s tests further indicate they are using a different device than the federally approved, Canadian version.

As for CBD, Velichover says a false positive for THC after consumption is “a biochemistry issue that could happen with any device.”

“We’re testing in the roadside 25 nanograms of THC. So you’re reducing the likelihood of something like CBD coming back positive,” she says.

How the test was done

Lee says Acumen’s testing was managed by University of Saskatchewan PhD student Carly Richmond, who has “no other connection to our office whatsoever,” and involved expert witnesses such as renowned analytical chemist Suzanne Perry.

“We also took urine samples, which we are having analyzed by an independent third-party lab to corroborate the presumptive tests we got on the urine cups, which we purchased at a medical supply store,” says Lee.  “So we can’t skew the results of that. We weren’t the ones that were conducting the tests. We facilitated it because we have the equipment and the space and the money to invest in getting it done. But the actual scientific work was not being done by myself or Paul.”

Due diligence

Velichover questions the ethics of using one device to test another. “I don’t really feel like they’re doing their due diligence,” she says. “There’s no question when they’re telling people that they’re going to test positive on opiates on a roadside. They know better, because they know that legally that’s not happening.”

Both Lee and Doroshenko, on the other hand, take issue with the fact that they have been unable to purchase a Canadian device.

“Just as with breathalyzers, the manufacturers have taken to hiding their equipment from lawyers,” says Doroshenko. “It’s the same as police hiding disclosure, in my view. If we can’t obtain these devices, test them and identify problems, we run into circumstances where innocent people may be charged, convicted and punished.”

There is one more thing upon which both parties can agree: The Draeger DrugTest 5000 may be a component in evaluating road risk, but it isn’t judge and jury.

“Importantly, the screener is used to screen, i.e. to make the determination to detain someone for further investigation. The evidence of the screener is not used in court to establish concentration or impairment,” says Doroshenko.

Veichover concurs. “It’s one tool in the bag for law enforcement to use when they’re assessing safety,” she says. “It’s not the kind of thing where you get a positive and you get an instant arrest.”

 

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