"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 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.
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?
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.
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.
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