Positive saliva test: what are your rights?
You are stopped at a police checkpoint. An officer asks you to take a saliva test. The result: positive. What now? Will you be prosecuted immediately? Can you contest this? And what are the consequences for your driving licence?
As a traffic law lawyer in Brussels, Novex Advocaten will explain to you how a drug check works, what your rights are, and how best to defend yourself.
How does a drug screening in traffic proceed?
A police check for drugs in traffic proceeds in two steps:
- Step 1 - Saliva test (orientation test): the police use a validated device to detect the presence of banned substances in your saliva. This is a rapid test. A positive result automatically leads to step 2.
- Step 2 - Blood draw for confirmation: In the event of a positive saliva test, you will be taken for a blood draw by a physician. This blood is sent to an accredited laboratory. Only after a positive blood test criminal charges may be filed.
Important: a positive saliva test alone is not sufficient for a conviction. Blood analysis is the only legally valid evidence.
Can you refuse the saliva test?
No. Refusing a saliva test is a criminal offence, equivalent to a positive test. This also applies to refusing to take blood. Thus, refusal automatically leads to prosecution.
What substances are being detected?
The saliva test detects: cannabis (THC), cocaine, amphetamines, methamphetamines, opiates (heroin, morphine) and MDMA. Benzodiazepines are only detected in the blood test.
Cannabis and driving: the THC problem
Cannabis is verreweg de meest voorkomende stof bij drugscontroles. THC (de actieve stof in cannabis) blijft echter lang detecteerbaar in speeksel en bloed — soms dagen tot weken na gebruik — ook nadat de effecten volledig uitgewerkt zijn. U kunt dus positief testen zonder daadwerkelijk beïnvloed te zijn.
This is a crucial defence that a specialised lawyer can invoke. The law does work with threshold values: for each listed substance a minimum concentration in the blood plasma is set, below which there is no offence. What the law does not provide is a scale of increasing penalties as it does for alcohol - but the context of use, time of day and quantity play a role in sentencing.
Can the blood test be disputed?
Yes, and this is one of the strongest defence strategies. A lawyer investigates:
- Was the blood draw performed correctly by a licensed physician?
- Were the storage conditions of the blood sample properly observed (temperature, transport times)?
- Has a counter-assessment taken place? You have the right to appoint your own expert.
- Do the values found exceed threshold values? Certain substances have minimum legal thresholds.
- Are you taking any prescription medications (e.g., benzodiazepines, prescription opiates) that affect the outcome?
What are the penalties for drugs in traffic?
Upon conviction, you risk: a driving ban from a minimum of 8 days to several years, a fine from 1,600 euros (after decimes), an immediate revocation of your driving licence for up to 15 days, and, for recidivism, the forfeiture of the right to drive with mandatory reinstatement examinations.
Consult a lawyer immediately
Was your saliva test positive and are you waiting for the blood analysis result? Or have you already received a summons? Consult Novex Advocaten as soon as possible. The earlier you act, the stronger your defence.
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