Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011. The environment made me fail my drug test

Sergeant George Zisopoulos served with NSW Police from 1999. He failed a drug test on 2 occasions.

On 16 April 2015 the applicant in the matter, being a Sergeant of police, was subject to a random drug test. He tested not negative (field positive), by urine to amphetamines, opiates and benzodiazepines.

His hair was then tested by Forensic Science SA. It was confirmed as positive. The testing of a different matrix is never a good idea. If you test urine, you should send urine to the lab. If you test saliva, you should send saliva to the lab.

Sergeant Zisopoulos used a number of excuse to explain his two failed drug tests including;

  • Him being present to the weighing of methamphetamines 2 months earlier made him test positive, despite not handling the drug himself.

  • Him being present to the weighing of a Buprenorphine tablet one month earlier made him test positive, despite not handling the drug himself. (also, Buprenorphine is a synthetic opioid and synthetic opioids do not show up on drug tests according to Fit 4 Duty)

  • The contamination of Sydney Harbour water. (allegedly Sydney harbour is polluted with enough methamphetamine to make you test positive. Sadly, ACIC monitor water for traces of drugs and they are yet to confirm any notable levels of drugs in Sydney Harbour water.

Somehow, a court accepted that cross contamination 'may' have occurred and couldn't be ruled out. For this reason the applicant was succesful and reinstated as a police sergeant on 19 March 2018 and the justice ordered that the service be considered unbroken (so that from the date of the officer being reinstated, the officer would have been serving precisely 19 years of continuous service).

It is hard to accept that the applicant did not wash his hair for a full 2 months before his hair was tested, especially as the applicant prides himself on hygiene. Even if I threw a brick of cocaine at someones hair whist they were wearing a respirator, they would only have to wash the hair.

This isn't the first time an officer has used strange excuses to justify a failed drug test, one officer claimed he tested positive to THC because some cannabis spilled onto his vest during a drug seizure. This is however the first time an officer with drugs in their system has been successful with outlandish tales.

Even if you discredit the hair testing and say "he didn't wash his hair for two months" that would not have created a positive test in the urine. The fact that his urine had methamphetamine in it and the hair sample was confirmed as positive for methamphetamine to any reasonable drug testing officer or pathologist indicates that the person had ingested/injected methamphetamine.

As the court case is over and the Police Force did not win an appeal, it is legally concluded that "being in the same room as drugs can make you positive" or "swimming in sydney harbour is positive".

I wish NSW Police the best of luck when motorists start using these excuses for testing positive for methamphetamine in court. The problem with cases like this, this will become a caselaw that can be manipulated saying "A judge concluded it was possible in this case, my circumstances are similar, let me off my drug driving charges".

I have handled bags of methamphetamine in my former career without respiratory protection and have been in close proximity to active meth users. I have never tested positive by urine or oral fluid for methamphetamine or amphetamine.

The case is over, by all accounts the applicant is 'innocent' of using drugs whilst a police officer as it is 'possible' that cross contamination occurred and somehow being in the same room as tiny amounts of methamphetamine made his urine positive for the drug. Whilst I have my doubts that could reasonably occur given the circumstances, I guess his lawyer had a convincing enough story for the court.

I would be interested to see what future cases will use this defence.

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