Drug Driving Defence Lawyers

In NSW, there are two main drug driving offences. The first offence is driving under the influence, which involves a driver being affected by drugs when driving and their driving is affected. The second offence is driving with an illicit substance in your system, which does not require the driver to have any impairment whatsoever or the quality of driving to be affected at all.

With thousands of motorists being charged with drug driving annually in NSW and this number increasing across the state, the Australian Criminal Law Group has made it their mission to be the experts in representing clients on drug driving charges.

If you have been charged with a drug driving offence, get in touch with the Australian Criminal Law Group.  We can help you get the best result for your case.  Phone us on (02) 8815 8167 or email us at info@aclawgroup.com.au.

 Driving under the influence of drugs charge (DUI) and what this means:

“Driving under the influence” occurs when a person uses or attempts to use a motor vehicle while under the influence of drugs. The police may also charge driving under the influence where they do not obtain a valid breath test or blood sample to provide a blood alcohol reading, and establish the appropriate range e.g., low, mid-range or high range PCA.

To charge a person with driving under the influence, the police do not need evidence of the presence of an illegal drug in their system from a drug test. Evidence to substantiate the charge can be the observations of police or other witnesses, as to a person’s driving, appearance, conduct, speech, mannerisms such as walking and steadiness, smell, or any other aspect of their behaviour.

In some circumstances, such as where there has been an accident, blood and urine tests may be ordered and used to determine if you are affected by drugs.

Driving with an illicit substance or drug in your system charge and what this means:

Drug driving with an illicit substance or drug in your system is what it sounds like. It is driving while having an illicit substance or drug in your system that is tested and detected as part of Roadside drug tests.

Roadside drug tests do not need to determine how much of the drug is in your system or if you are likely to have your driving ability impaired by the presence of the drug to be charged. Rather it is enough to have the drug in your system at all.

To be guilty of this offence, you do not need to be impaired in any way. If you had a joint three days earlier and test positive to cannabis, you are guilty irrespective if it has been days since you felt the effect of the drug.

What drugs do roadside drug tests test for?

The drugs that are tested for as part of roadside drug tests in NSW include four common illegal drugs: ecstasy (MDMA, ecstasy pills), THC (the active ingredient in cannabis or marijuana), cocaine, and methamphetamine (including speed and ice).

How the Roadside Drug test is performed:

Similar to drink driving tests, Police can test for the presence of specific drugs in a person’s system.  Where drink driving tests require the driver to blow into or count into a device, drug driving tests involve saliva swab which is tested for the presence of certain illicit drugs.

Should the test result in a positive read, a second test will be administered.  In NSW that consists of a second saliva swab which is then sent to a lab for testing.  In other states that may include a blood test, requiring the driver to attend a medical practice or hospital to have the test carried out.

What happens after a positive road-side drug test?

Following a roadside drug test, your swab is sent to a lab for testing.  If the lab finds the swab tests positive for the presence of illicit drugs or substances, the following is what will happen;

First time drug driving offence

If this is the first offence, you may receive a penalty notice from the police.  This will include a fine as well as a three-month licence suspension.

If you receive a penalty notice from the police and you admit that you were drug driving, then you should pay the fine by the due date or before it.

You should also receive a notification in the mail with details about when your driving suspension commences.

Second or subsequent drug driving offence

If this is your second or subsequent offence, you will likely receive a court attendance notice from the police.  This means that you will have to go to court on the date included on the court attendance notice.  You may receive a licence disqualification as well as a fine.

What is the penalty for drug driving in NSW?

The penalties for drug driving differ depending on the charge and whether or not it is your first offence or not.

If it is your first offence and you are charged with illicit substance present, you could receive a maximum fine of $1,100. However, if it is not your first offence and depending on the offence, you could be issued with a much heftier fine and license disqualification period.

Following are the penalties available to the court for drug driving offences in NSW;

 

Maximum
Fine

Automatic Disqualification
Period

Minimum Disqualification Period

Maximum Term of Imprisonment

Drive with illicit substance present (first offence)

$2,200

6 months3 months

N/A

Drive with illicit substance present (second or subsequent offence)

$3,300

12 months6 months

Driving under the influence (first offence)

$3,300

12 months3 years

18 months

Driving under the influence (second or subsequent offence

$5,500

3 years5 years

 2 years

 

Will I get a criminal record for drug driving?

If you are found guilty of driving with an illicit substance or drug in your system, you will have the offence included on your criminal record unless you get a section 10.

Section 10 is when you are guilty and sentenced but the court dismisses the offence without recording a conviction. When the court has not recorded a conviction, you are not given a criminal record and for traffic offences, you keep your driver’s licence.

If you lose your licence, it can cause huge inconvenience for those wishing to travel to certain countries and can seriously impact employment and career progression opportunities.  It is, therefore, recommended that you seek legal representation from a qualified drug driving lawyer if you are charged with drug driving and may be eligible for a section 10.

Contesting a penalty notice for drug driving in court

If you receive a fine and driver’s license disqualification for drug driving and you would like to contest it, there is always an option to attend court to do so.  However, it is important to note that very few cases are found to be not guilty.   Unless you believe that there was a real mistake made in testing or you have a solid excuse of a reasonable mistake where you didn’t know you had ingested the illicit substance or drug (i.e. you were spiked), then we recommend that you pay your fine.

Before electing to go to court to have your matter heard, we recommend that you consider the following.

  • Depending on the fine and suspension period you received, there is always the chance that the courts might choose to increase your fine and suspension.
  • The court could decide to record a conviction for a driving offence. This would result in a licence disqualification, rather than a suspension.  This means that you would have to reapply for a new driver’s license to drive again.
  • Most cases before the courts result in a finding of guilt. It could, therefore, be a waste of time and energy for you to have the courts deal with your charge.

However, for more serious offences, and if you received a court attendance notice, you will have to attend court to have your matter dealt with.

If you plead guilty, you may be able to apply for a section 10 dismissal or conditional release order.  Section 10 means no conviction is recorded and your license will not be disqualified.  This is the ideal outcome as it means you will not receive a criminal record.  You will also not receive a fine.

How can I beat a drug driving penalty notice?

To be found guilty of drug driving, the prosecution must be able to prove beyond a reasonable doubt each of the following, depending on the charge.

Driving with an illicit substance or drug in your system

The police must be able to prove beyond a reasonable doubt that;

  1. You had an illicit substance or drug in your system, and
  2. While you had the illicit substance or drug in your system you;
    1. You drove a vehicle; or
    2. Occupied a driving seat of a vehicle and attempted to put the vehicle in motion; or
    3. occupied the seat in or on a motor vehicle next to a learner driver who was driving the vehicle (if the person is the holder of an applicable driver’s license, other than an applicable provisional license or applicable learner license)

Driving under the influence of an illicit substance or drug in your system

To be charged with this offence, the police must be able to prove the above, beyond a reasonable doubt, as well as, that you were influenced, and driving was impaired by the presence of the illicit substance or drug in your system.

Read more about driving under the influence.

 Defences for Drug Driving

If you believe you are not guilty of a drug driving offence, there are some defences that could be relevant.  Those include;

Possible defences for drug driving include

  • If you made an honest mistake and you didn’t know you had ingested an illicit substance (you were spiked).
  • You honestly and reasonably believed the drugs were no longer in your system due to the passage of time.
  • If you can challenge that the drugs were in your system at the time of driving. This can be done if there was a testing mistake or the results were inconsistent.
  • If you have legitimate medical Reasons. That is if you had been prescribed medication and you have taken on the doctor or pharmacist’s advice and at the recommended dosage.

About Roadside Drug Testing (RDT)

Roadside Drug Testing (RDT) was introduced in NSW in 2007 giving police the power to stop a vehicle for the purpose of a roadside drug test.  Like a roadside drink driving test, the police test for the presence of drugs in a person’s system.

Police have been conducting roadside drug tests across Australia since 2003, first administered by police in VIC that year and making Australia the first country to introduce roadside drug tests globally.  Still, roadside drug tests are relatively new compared to other drug policies in Australia.

In 2015, the Australian government announced they would triple the number of roadside tests administered by police.   Since then, there has been a steep incline in the number of people being charged with drug driving.

However, unlike when drink driving tests were first implemented in the 1980s and there was a marked reduction in the number of fatalities and accidents on the roads because of drink driving, the roadside drug tests have not seen a similar benefit for safe driving practice and motorists.

About Australian Criminal Law Group

Australian Criminal Law Group is home to the leading drug lawyers and criminal law firm in Sydney. We are known for getting the best results every time.

Australian Criminal Law Group represent clients charged with serious drug drive and combined drug and drink driving charges in court.  If you are facing a serious charge, get in contact with us at one of our offices in Sydney, Parramatta, or Blacktown.  Call 02 8815 8167 or send us a website enquiry.

 

Sources:

Drug Misuse and Trafficking Act 1985 No 226 Current version for 1 April 2021 to date (accessed 29 June 2022 at 09:00)  https://legislation.nsw.gov.au/view/html/inforce/current/act-1985-226

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This information is intended as a general guide to law only.  It should not be relied on as legal advice, and it is recommended that you speak with a qualified lawyer about your situation.

Australian Criminal Law Group and its suppliers make every reasonable effort to ensure the accuracy and validity of the information provided on its web pages. At the time of updating, this information was correct, however, given the laws in NSW and Australia are continually changing, the Australian Criminal Law Group makes no warranties or representations as to its accuracy. 

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