Driving Under the Influence of Drugs

There are several Drug Driving Laws NSW Police can rely on to charge drivers with drug relate driving offences. Some of these offences are more serious than others. One of the more common and serious forms of Drug Driving is the offence of Driving Under the Influence of Drugs (DUI). 

The Law

A person is committing this offence if, whilst under the influence of a drug:

(a) drives a motor vehicle, or

(b) occupies the driving seat of a motor vehicle and attempts to put the vehicle in motion.

Penalties

The penalties for Driving Under the Influence of Drugs are set out in the table below:

It is also an offence if the person is the holder of an applicable driver's licence and occupies the seat of a vehicle next to a learner driver who is driving the vehicle. The maximum penalty for this offence is a fine of $2,200, irrespective of whether it is a first or second offence, with no gaol term. The disqualification periods are the same as in the above table.

Commentary

There are different circumstances where one can find themselves charged with this offence. Two typical scenarios are where the person has been involved in a serious accident and taken back to a hospital, or being pulled over "randomly" by police at the side of the road. Typically, police rely on obtaining a blood sample or, a sample of the person's oral fluid.

There are certain legal requirements that police must first meet before being able to obtain an oral fluid or blood sample. For example, if police have pulled someone over at the side of the road and suspect that they are under the influence of a drug, they must first submit the person to a sobriety test. If the driver fails the test, then the police can arrest the person and take them to a hospital for the purpose of having a blood sample taken.

The sample is sent sent to a laboratory to be independently tested for the presence of a drug. An expert can then be called on to provide an opinion as to whether the drug is present at a level that would impair the person's ability to drive.

It must be noted, however, that an expert certificate alone may not be enough to prove that the person was "under the influence". Generally, the police will offer their own observations of how the driver appeared and conducted themselves, and for most part, this evidence is admissible in Court. Combined with an expert opinion that the person would have been impaired, this is usually enough to make out the charge. However, it is still sometimes possible to defend this type of drug driving charge, in the right circumstances.

Also, it must be remembered that the drug that is found in your system does not necessarily have to be an illicit or illegal drug to be charged with and found "guilty" of the offence. There are many prescription drugs, for example, that are considered at law "drugs" for this type of offence.

If you have been charged with Driving Under the Influence of Drugs and wish to defend the charge or wish to engage an experienced lawyer to assist you in having your penalty reduced, we can help.

Contact us to speak to one of our lawyers at our offices in Sydney, Parramatta, Chatswood, Sutherland or Wollongong.

Drug Driving Penalties NSW

It is an offence in New South Wales to drive a motor vehicle whilst there is a presence of an illicit drug in your oral fluid, blood or urine. It is also an offence to drive a vehicle while under the influence of any drug. Collectively, these offences can be referred to as "drug driving" offences. We have prepared the below table that includes the more common offences with their respective penalties.

Drug Driving Penalties NSW

If you have been charged with a drug driving offence, traffic lawyers with experience in this area of law can help. Contact us to make an appointment with a traffic lawyer at your nearest Prime Lawyers office. Our representation will assist you in reducing the Courts would likely impose. 

Mobile Drug Testing

When most people think of Drug Driving offences, the most common one that comes to mind is the offence that results from being detected at a Mobile Drug Testing station (MDT) set up by police at the side of the road. Many people are often shocked when they are told that their test returned a positive result and further, that their ability to drive has now been placed in jeopardy, particularly if they are then charged with a Drug Driving offence.

The Law

Pursuant to section 111(3) of the Road Transport Act, a person must not, while there is present in the person’s oral fluid, blood or urine, any prescribed illicit drug:

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence - occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Penalties

The penalties for an offence by way of detection at a Mobile Drug Testing unit are as follows:

Commentary

The purpose of our current Drug Driving law was questioned at the time the law was enacted (which is relatively recent compared to other, similar traffic laws) and continues to be questioned today.

The offence of driving under the influence of a drug has been around for a long time. This offence has always required proof that any drug in the driver's blood had an actual effect on the person's ability to drive. However, the addition of this particular drug driving law now means that the police simply have to prove that a drug was detected, to make out the elements of the offence, even if the presence of the drug has absolutely no effect on the driver, whatsoever.

It is possible to defend this type of drug driving offence, however, it requires the driver to prove that he or she was unaware that there was a drug in their system and that, under all the circumstances, the Court accepts that it was reasonable for them to have formed that mistaken belief.

This becomes a particularly difficult task when the person admits to having knowingly ingested a drug in the recent past. But for how long should a person be expected to not drive after having taken drugs? Two days? Three days? A Week? What length of time is considered reasonable? (Read more commentary on this particular topic in our article entitled "What is Wrong with Our Drug Driving Law?")

The difficulties faced when charged with a Drug Driving offence as a result of an MDT and the harsh penalties that affect people's livelihoods mean that it is always important to seek legal advice from an experienced Traffic Lawyer who has the ability to defend a charge, where possible, or importantly, argue on your behalf why the Court should show leniency and not disqualify you for the offence.

If you have been charged with a Drug Driving offence by way of Mobile Drug Testing, we invite you to contact one of our experts at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.

What Is Wrong With Our Drug Driving Law?

"Drug driving" laws have been around for a long time. The earliest form of the current drug driving laws is the offence of "driving under the influence of a prohibited drug". 

The purpose of making driving under the influence of a drug an offence is clear and most in the community would not argue against this. If a driver is considered to be "under the influence" of a drug (or alcohol) to the point that it affects judgement and the ability to drive, then it makes sense that, taking into account community safety, an offence provision should exist to outlaw that type of behaviour. 

In 2006, NSW legislature introduced a new "drug driving" law; that is, to make it an offence to be driving if there is an illicit substance detected in the driver's system. 

The offence, still in its original form, is currently found at section 111 of the Road Transport Act 2013.  Pursuant to section 111, a person must not, while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug:

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

The reasons for this particular offence and how it properly related to road safety was at the time and remains unclear. 

If someone is charged with this particular offence, it is conceded by the police that the person was not committing the more serious offence of "driving under the influence".  All that is required is expert evidence by way of a certificate that there was present in the person's system a drug, not that it has impaired their judgement or ability to drive in any way whatsoever. In fact, if the particular offence is brought before the Court, the police would likely not be permitted to argue that the driver was influenced in any way, as to do so, the police would in fact be arguing that the driver has committed the more serious "drive under the influence" offence. 

The Penalties

The penalties available to a Court for the more serious driving under the influence offence include a term of imprisonment, an automatic disqualification from holding or obtaining a licence for a period of 12 months (which can be reduced to 6 months, but can also be increase beyond 12 months) and a maximum fine of $2,200.

The available penalties for driving with an illicit substance/prohibited drug in one's system are a maximum disqualification period of 6 months (reducible to a minimum period of 3 months) and a maximum fine of $1,100. One cannot go to gaol for this offence. (Read more on drug driving penalties.) 

The difference in the penalties is also a reflection of the seriousness of each offence and by extension, the amount of time the community would expect a driver to be disqualified and therefore unable to drive. Remember, road safety and the protection of the community by illegal forms of driving is paramount. 

So, if driving with an illicit substance/prohibited drug in one's system means that there is no evidence that the person was at all affected by the drug, should they be punished in a similar way to having committed any other serious driving offence?  Should the person's ability to drive be taken away from them simply because they chose to take a drug at some point prior to driving (and in all instances, long enough to not still be affected by the drug)?

Many would argue that this type of "drug driving" law is punishing people for the wrong reasons and punishing people in the wrong way. 

How long must someone wait before driving?

In addition to those the above sentiments, there is also the obvious problem with timing. Just how long is someone supposed to wait? After having consumed a drug, before driving? How long after consuming the drug will it stay in their system and be detected by a MDT (Mobile Drug Test) and any expert report from the laboratory??

One would say that even the so called "experts" are not sure. Common sense would say that it is likely to vary from one person to another and that there are too many variables to consider to be able to safely say just how long someone should wait. 

In fact, when the law was first introduced, and for some time thereafter, police were given the power to temporarily "suspend" a driver's licence for 12 hours after being detected. This itself meant that the "experts" had determined that the person would be fine to drive after the twelve hour period, and that the same drug would not be detected should that person be subjected to a roadside test. 

Well guess what? This suspension period was eventually changed to 24 hours. What does this say about the reliability of these types of laws? 

Reasonable mistaken belief

Many criminal and traffic lawyers will have had clients charged with this particular offence who have sworn till they were blue in the face that they had not consumed any drugs within a couple of days or even more before driving and being detected.  It is common, especially when the drug is cannabis. 

What then? Well, all people charged with this offence have available to them the argument that there was a reasonable, mistaken belief that the drug was no longer in their system. 

Although this argument is considered a "defence", legally speaking, it is not a defence but an argument that needs only be sufficiently raised on the available evidence. Typically, though, some evidence is given by the defendant as to his/her belief and also, the factual circumstances that are to be relied on for the argument to be raised. It is then a matter for the prosecution to persuade the Court that: there was no mistaken belief; and/or, if there was a mistaken belief, it was not reasonably held. 

Therefore, these arguments normally stand or fall on whether the mistaken belief is considered reasonable under the circumstances. 

With these types of drug driving offences, what is reasonable will come down to the particular circumstances of the case as can be seen from the case of Carrall, in which Magistrate Heilpern found that it was reasonable, taking into account all of the circumstances, that the defendant believed that he no longer had a detectable amount of cannabis in his system, when driving. 

Law reform

The publicity of Carrall has again called into question the purpose and fairness of this particular offence provision. Is it really just a backdoor provision to detect and punish those who ingest an illicit substance? And if so, is it appropriate to take away their ability to drive upon being convicted? 

Prime Lawyers has always argued that the enactment of this particular offence provision was misguided and misdirected. This particular case highlights some of the problems with the existing law. 

Now that a decision like this has been published, should the law remain as it is, one would argue that it is even more unjust. Why? It will mean that there is published material in the community that it may well be common for cannabis to be detected several days after being consumed. This means that it is arguably evident that the wrong people are being charged and/or that the wrong punishments can be potentially meted out. 

Further, if it becomes common knowledge that cannabis can remain in your system and therefore be detected by an MDT several days after consumption, will Courts start to find that a person cannot argue that they had a reasonable mistaken belief that the drug was no longer present??

Only time will tell whether this misguided and misdirected law receives proper consideration by the legislature. 

If you have been charged with a drug driving offence get in touch by contacting your nearest Prime Lawyers office here.