DRUG DRIVING

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Is dangerous driving a serious offence?

Being charged with drug driving offences can have a significant impact on your life with long term effects on your current employment, your ability to get work, your ability to care for dependents, ability to get car insurance and family court (parenting) proceedings.

If you have been charged with drug driving offences, you should seek legal advice immediately to ensure the best possible outcome for your matter. Contact our law firm for a free initial consultation.

What is drug driving?

Drug driving charges are the result of driving with the presence of a prescribed illicit drug in your oral fluid, blood or urine or driving or attempting to drive under the influence of alcohol or any other drug. The first offence only requires you to have the drug in your system at the time of testing, whereas the second offence requires you to be physical affected by that drug. 

It is treated just as seriously if not more so, than drink driving. Drug driving is an offence because consuming drugs can cause significant impairment of your judgment and concentration jeopardising the road safety of others. In 2015, 1 in 13 roadside drug tests conducted by Police returned a positive result.

There is currently no way to measure and determine an acceptable concentration of drugs in the same way an acceptable concentration of alcohol has been established. Unlike alcohol, drugs can last many days in your system and just like alcohol, everybody reacts differently to drugs. 

If you have returned a positive drug test simply because you have an illicit drug in your oral fluid, blood or urine, and it is your first offence, you will be issued with an infringement notice and suspended from driving for 3 months. You will not be required to attend court unless you elect to appeal it. If you elect to appeal it, you will be issued with a Court Attendance Notice stating the day, time and location for your matter. Your appeal will be heard in the Local Court. 

The courts review your traffic history in 5 year periods. If you have not had a major traffic offence in the previous 5 years, your matter will be treated as a first offence. If you have had a major traffic offence in the previous 5 years, your matter will be treated as a second or subsequent offence. 

If you appeal your infringement notice and suspension, and you are convicted by the court, you risk getting a heavier sentence as set out below. You also risk having your suspension period upgraded to a 6 months licence disqualification. If the court convicts you of a drug driving offence, your licence suspension becomes a licence disqualification period. 

If you are in a car accident while under the influence of drugs and it results in the death or grievous bodily harm of another person, you may be convicted under the criminal law and imprisoned for 10 to 14 years.

What does the prosecution need to prove?

Traffic offences are strict liability offences. That means the prosecution only needs to prove that you had the illicit substance in your oral fluid, blood or urine at the time the test was conducted or that you were under the influence of alcohol or any other drug at the time. It does not need to prove you had an intention to commit an offence. If you had morphine in your blood or urine at the time of the test, it is up to you to prove that it was for medical purposes. The prosecution also has to prove the offence beyond a reasonable doubt.

If you plead guilty to the offence, the prosecution does not need to prove anything as your matter will go straight to sentencing. You may be entitled to a 25% reduction in your sentence. However, you should not plead guilty until you have received legal advice so that you can make an informed decision.

Police roadside powers

In NSW, a police officer has similar roadside powers for drink driving offences and drug driving offences. The only difference is the tests used.  

  • A police officer can request your identification. If you fail to provide your identification, you can be arrested and taken to a police station to have your identification proven. Apart from identification, you are not required to say anything else. You have a right to silence.
  • Power to conduct a random saliva test on your oral fluid. A saliva test is conducted by wiping a MDT test stick down your tongue. The test will indicate whether you have THC, methylamphetamine or MDMA in your system. The police have 2 hours from a reported incident e.g. car accident to conduct a saliva test.
  • If you return a positive roadside drug test, you will be arrested and taken to a mobile drug bus or police station for a second test using a DRAGAR (similar to a BAS machine). If your second test returns a positive result, it will be sent to a laboratory for testing to confirm the results. If you returned a positive roadside drug test but a negative DRAGAR test, your sample will still be sent to a government laboratory for testing. During that time, you will be suspended from driving. You cannot drive during that time. If you do, you can be prosecuted. Click on the Traffic Law at the top of the page for further information about driving while suspended or disqualified. 
  • If a police officer reasonably suspects you are driving under the influence of drugs, you can be arrested and taken to a hospital for a blood test or urine test by a medical professional. If a blood test or urine test is required, the Police have 4 hours from the time of the reported incident e.g. car accident to have a sample of your blood or urine collected for analysis by a medical professional.

Drug driving offences

Presence of prescribed illicit drug in your oral fluid, blood urine

If you have a prescribed illicit drug present in your oral fluid, blood or urine and you:

  • Drive a motor vehicle, or
  • Occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
  • You are a licence holder with the appropriate driver’s licence and you occupy the seat next to a learner driver who is driving the vehicle,
  • You are guilty of an offence.

The maximum penalty for this offence is:

  • First offence = a fine of $2,200
  • Second or subsequent offence = a fine of $3,300.

A prescribed illicit drug is defined as THC (cannabis), methylamphetaimine (speed), ecstasy and cocaine.

Presence of morphine in your blood or urine

If you have morphine present in your blood or urine and you:

  • Drive a motor vehicle, or
  • Occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
  • You are a licence holder with the appropriate driver licence and you occupy the seat next to a learner driver who is driving the vehicle,
  • You are guilty of an offence.

The maximum penalty for this offence is:

  • First offence = a fine of $2,200
  • Second or subsequent offence = a fine of $3,300.

It is a defence if you can prove that the morphine is in your blood or urine for medical purposes. Medical purposes are defined as:

  • Prescribed drug by a medical practitioner and taken in accordance with the medical practitioner’s instructions, or
  • A codeine based medication purchased from a pharmacy and taken in accordance with the manufacturer’s instructions for example, cold and flu medication.

If you are under the influence of alcohol or any other drug, you must not:

  • Drive a vehicle, or 
  • Occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or 
  • If you hold an applicable drivers licence, occupy the seat in or on a motor vehicle next to a learner driver who is driving the vehicle.

The maximum penalty for this offence is:

  • First offence: a fine of $3,300, 18 months imprisonment or both
  • Second or subsequent offence: a fine of $5,500, 2 years imprisonment or both.

In order to be charge and convicted of this offence, the prosecution must prove you were affected by the drug.

Serious car accidents involving drugs

Dangerous driving occasioning death

If you drive a vehicle and you are involved in a car accident causing the death of another person and at the time of the car accident, you were driving:

  • Under the influence of intoxicating liquor or a drug; or
  • At a speed dangerous to another person or persons; or
  • In a manner dangerous to another person or persons

The maximum penalty for this offence is 10 years imprisonment.

Aggravated dangerous driving occasioning death

If you commit this offence in circumstances of aggression, the maximum penalty is 14 years imprisonment.

Aggravating circumstances include but are not limited to:

  • Element and nature of injuries inflicted
  • Number of people put at risk
  • Degree of speed
  • Degree of intoxication or of substance abuse
  • Erratic or aggressive driving
  • Competitive driving or showing off
  • Length of the journey during which others were exposed to risk
  • Ignoring warnings
  • Escaping police pursuit
  • Degree of sleep deprivation
  • Failing to stop

Dangerous driving occasioning grievous bodily harm

If you are driving a vehicle involved in a car accident causing grievous bodily harm to another person and at the time of the car accident, you were driving: 

  • Under the influence of intoxicating liquor or of a drug
  • At a speed dangerous to another person or persons
  • In a manner dangerous to another person or persons

The maximum penalty for this offence is 7 years imprisonment.

If you commit this offence in circumstances of aggression, the maximum penalty is 11 years imprisonment. Aggravating circumstances are set out above.

Summary court process (Local Court)

For the offence of driving with an illicit drug present in your oral fluid, blood, or urine as well as driving or attempting to drive under the influence of alcohol or any other drug are prosecuted in the Local Court. The process is as follows:

  1. Contact Jameson Law for a free initial consultation 
  2. Mention hearing: This is the first court date for your matter. It essentially brings it to the attention of the court. You can plead guilty at this stage after receiving legal advice and the matter will be finalised. If you plead not guilty, the court will adjourn your matter and set another court date. The court will set a date for each party to produce their evidence (brief mention)
  3. You should use this time to gather any supporting evidence such as character references.
  4. Brief mention: Each party must produce their evidence to the court and each other. Another court date will be set for hearing
  5. Hearing: both parties will present their argument to the court. The court will make its decision and issue a sentence where appropriate.

Local Court sentencing options

Section 10

A section 10 is the best possible outcome in the event the court finds you guilty of a drug driving offence. There are three orders available to the court under section 10 of the Crimes (Sentencing and Procedure) Act where the court believes it is inappropriate to further punish an offender. 

  • Section 10 (1) (a)- dismissal with no conviction recorded
  • Section 10 (1) (b)- dismissal with no conviction on conditions set by the court. For example, not to commit an offence for a period of two years 
  • Section 10 (1) (c)- dismissal with no conviction on the condition that the offender enters into an intervention program. For example drug and alcohol counselling. 

A section 10 is an acknowledgement of the court that you have committed an offence, however, the court is satisfied that it is out of character and you are unlikely to continue offending. It’s the court’s way of giving you a second chance.

Before granting a section 10, the court will consider:

  • Your traffic history. 
  • Your character, antecedents, age, heath and mental condition, etc
  • The trivial nature of the offence
  • Extenuating circumstances that lead to the offence being committed 
  • Any other matter the court considers relevant

Intensive Correction Order

Intensive Corrections Orders are an option available to the court where a sentence of imprisonment is imposed on the condition that a defendant is of good behaviour and agrees to supervision by a community corrections officer rather than go to prison. 

Additional conditions that may be imposed by the court include:

  • home detention
  • electronic monitoring
  • curfew
  • community service (up to 750 hours)
  • participation in rehabilitation or treatment programs, for example drug treatment/counselling
  • no drugs or alcohol
  • refrain from certain relationships/associations, for example drug dealer, etc.
  • ban from certain locations

Community Correction Order

Community Corrections Orders are similar to Intensive Corrections Orders. The main exception being that a defendant needs to make themselves available to attend court at any time the court requires.

Conditional Release Order

A Conditional Release Order is similar to an Intensive Corrections Order or Community Corrections Order. A Conditional Release Order can be issued with or without a conviction recorded.

Section 32

A section 32 is a diversionary option available under the Mental Health (Forensic Provisions) Act 1990 (NSW). If a defendant is, or at the time the offence of drug driving occurred:

  • cognitively impaired
  • suffering from mental illness
  • suffering from a mental condition for which treatment is available in a mental health facility

The options available to a magistrate under a section 32 include:

  • adjourning the matter
  • granting the defendant bail
  • any other order the magistrate deems appropriate
  • dismissing the charges and discharging the defendant into the care of a responsible person (e.g. a parent) on the condition they attend a specified place for assessment or treatment.

Disqualification periods

If you are convicted of a drug driving offence, the court will issue a disqualification period in place of the suspension period issued. 

No major traffic offence in the previous 5 years = 6 months automatic disqualification. However, if the court deems it appropriate, it can order a disqualification period of not shorter than 3 months.

Major traffic offence in the previous 5 years = 12 months automatic disqualification. However, if the court deems it appropriate, it can order a disqualification period of not shorter than 6 months.

Indictable Court Process (District Court or Supreme Court)

If you are charged with dangerous driving offences resulting in death or grievous bodily harm while affected by drugs or with illicit drugs in your oral fluid, blood or urine, the matter will be prosecuted in the District Court. The process is as follows:

  1. Contact Jameson Law for a free initial consultation
  2. Bail: An application for bail may need to be made if bail isn’t granted earlier
  3. Committal hearing: This a hearing to determine if there is enough evidence to proceed to trial. If there isn’t enough evidence, that is the end of the matter. If there is enough evidence, the matte is adjourned and a new court date is set.
  4. Case conferences: may take place between the committal and the trial. 
  5. Trial: Both parties will present their argument to the court. This can take a number of weeks or months depending on the seriousness of the matter and the number of charges. The jury will make a determination of guilt. If they find you guilty, the court will adjourn and a new date set for sentencing. This gives the judge an opportunity to review the evidence and work out the most appropriate sentence. The court may ask for additional information to inform sentencing such as pre-sentencing reports from Corrective Services, etc.
  6. Sentencing: The judge will hand down his or her sentence and their reasons for the

Disclaimer

The above is general legal information and should not be considered legal advice. You should speak with one of our criminal lawyers for legal advice tailored to your specific legal matter. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.

Frequently Asked Questions.

Active THC (cannabis), amphetamine (speed, ice, crystal meth and base) and ecstasy (MDMA) are tested during roadside MDTs. However, if a police officer reasonably suspects that you are under the influence of another drug, legal or illegal, you can be required to undergo mandatory blood or urine testing administered by a medical professional.

No. Just like random breath tests, roadside drug tests and blood/urine tests are mandatory. It is also an offence to wilfully alter a drug test. If a blood test or urine test is conducted, you can apply to have your sample independently tested. Speak to one of our expert traffic lawyers to discuss how you can make an application to have your sample independently tested.

Demerit points do not apply to drug driving offences as you will automatically have your licence suspended. If your matter appears before the court and you are convicted, your licence will be disqualified and you will have to reapply for it once your disqualification period has been served. Any drug driving fine, suspension or disqualification period will be recorded on your traffic record.

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