Traffic Law

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:

PENALTIES

FIRST OFFENCE

SECOND OR SUBSEQUENT OFFENCE

Maximum court imposed fine

$1,100

$2,200

Maximum gaol term

-

-

Automatic disqualification period

6 months

12 months

Minimum disqualification period

3 months

6 months

Maximum disqualification period

6 months

Unlimited


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.

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