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Prisoner's rights

Discipline and punishments inside prison

Drug and alcohol testing

Can I be required to take a drug or alcohol test?

Corrections Act 2004, ss 98, 124, 125; Corrections Regulations 2005, reg 135

Yes, you can be tested if prison staff suspect on reasonable grounds that you’ve used drugs or have been drinking alcohol while in prison or on temporary release. You can be ordered to take a saliva test, a finger swab test or to give a urine sample. Most drug tests are urine tests. Tests are done by a separate testing unit within the prison.

If you’re required to give a urine sample you will usually have to wash your hands or wear gloves, to make sure the sample is not tampered with. If there are reasonable grounds to believe you have tampered with a sample, then you can be strip searched before providing another sample.

Before you’re tested, you must be told why you’re being tested, how the test will be carried out and the consequences of refusing or tampering with a test.

Random drug/alcohol testing

Corrections Regulations 2005, regs 144-148; Prison Operations Manual, S.07.01

You might also be randomly chosen for a drug/alcohol test by a computer.

There are two different pools of prisoners for random testing. There is “general random,” which means random testing from the general prison population, and there’s also an “IDU” (identified drug user) list. If you’re an identified drug user you’ll be on both the general random list and the IDU list, so your chances of a random test are greater.

Random testing must be carried out at a reasonable time of day.

Are there limits on when or how often I can be tested?

Corrections Act 2004, s 124; Prison Operations Manual, S.07.01.04

You can be tested any time the prison staff have reasonable grounds to suspect that you’ve used drugs or alcohol – for example, if a prison officer smells drugs in an area and you’re within that area, or if the prison have been given information that you’re using drugs or alcohol. The grounds for suspicion must be stated in a written incident report. A test should take place within seven days after the suspicion arises.

You can also be tested randomly (see above). Approximately one in 10 prisoners are tested randomly each month for general random testing. About one in five IDU prisoners or prisoners on temporary release are tested each month.

There’s no limit on how often you can be tested during your sentence.

What if I refuse a drug/alcohol test?

Corrections Act 2004, s 129

It’s a breach of prison rules to refuse a drug/alcohol test. You’re also not allowed to tamper with a sample or to try to dilute a sample.

Can I have access to drinking water before being tested?

Corrections Act 2004, s 129; Corrections Regulations 2005, reg 138

It’s unlikely you’ll be given access to drinking water immediately before being tested, but you shouldn’t be prevented from drinking water if the test isn’t taking place immediately. However, if you’re drinking water when you know you’re getting a urine test, remember that you can be charged with providing a diluted sample.

If you’re unable to provide a sample, or if you spill your sample, you’ll be supervised for up to three hours and provided with no more than 200 ml of water each hour until you provide the sample.

If someone else spills your sample you can’t be required to provide another sample.

Can my drug test be used against me in the courts?

Corrections Act 2004, s 127

No, both the fact that you’ve been tested and the results of a test can’t be used as evidence against you in the courts.

What will happen if I fail a drug/alcohol test?

Corrections Act 2004, s 129, 130; Prison Operations Manual, S.07.Res.04

If you test positive (that is, if you fail the test), an internal charge will be brought against you. Once you return a positive test you can be placed on restricted (booth) visits immediately, but no further disciplinary action should be taken unless and until you’re found guilty on an internal charge.

A positive drug test is an offence against prison rules, not a criminal offence. However, if you’re found in possession of illegal drugs, you can be charged under the criminal law for this and you may receive a longer sentence.

Remember too that if you’re found guilty of internal charges for drugs, this will be reported to the Parole Board. They’ll take this into account when they’re deciding later if you should be released on parole.

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Discipline and punishments inside prison

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