Drug Driving
Drug Driving
Obtaining legal advice about whether a defence exists for your charges is a critical first step. Drug Driving offences are established under Section 49(1) of the Road Safety Act 1986. A finding or plea of guilty carries mandatory licence loss provisions, and the penalties can differ substantially based on whether a person has any relevant prior convictions.
The most frequently charged Drug Driving offences arise under Section 49(1)(bb) and 49(1)(h) of the Road Safety Act.
49(1) A person is guilty of an offence if he or she
(bb) drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in his or her blood or oral fluid; or
(h) within 3 hours after driving or being in charge of a motor vehicle provides a sample of oral fluid in accordance with section 55E and
(i) the sample has been analysed by a properly qualified analyst within the meaning of section 57B and the analyst has found that at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and
(ii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle;….
Although you may receive a Charge and Summons requiring your attendance at Court, a first offence is frequently resolved by way of a Traffic Infringement Notice. It is important to note that regardless of whether the matter is dealt with by Infringement notice or charge and summons, the mandatory minimum licence loss provisions remain the same.
A person convicted of an offence under 49(1)(bb) or 49(1)(h) is liable to a fine of no more than 12 penalty units for a first offence, no more than 60 penalty units for a second offence, and no more than 120 penalty units for any subsequent offence.
A conviction for Drug Driving under 49(1)(bb) or 49(1)(h) of the Road Safety Act does not carry a custodial sentence. That said, the Magistrate retains the discretion to assess an offender’s suitability for a Community Corrections Order, which can impose supervision by the Office of Corrections and unpaid community work. Whether a Community Corrections Order is likely depends on a range of factors. If you have prior convictions for Drug Driving offences, it is important to seek advice about potential sentencing consequences as soon as you receive your charge and summons.
Upon convicting or finding a person guilty of a Drug Driving offence, the Court is required to cancel any existing driver licence or learner permit and disqualify the offender from obtaining one for a minimum of 6 months on a first offence, or at least 12 months for any subsequent offence.
Licence Loss Exception – Section 50(1F) Legal Medicinal Cannabis
Where a charge arises under section 49(1)(bb), (h) or (i) and the drug detected is a legally prescribed medicinal cannabis product being used consistent with a valid prescription or other authority, there is a possibility of retaining your licence. In those circumstances, upon a conviction or finding of guilt, the court may — rather than must — cancel the offender’s licence or learner permit and impose a disqualification period of at least 6 months (first offence) or at least 12 months (subsequent offence). The key distinction is that licence cancellation is no longer mandatory in these circumstances.
The inclusion of Section 50(1F) in the Road Safety Act introduced a discretion that previously did not exist. A Magistrate may now resolve a Drug Driving matter without affecting a person’s ability to drive, provided the medicinal cannabis was lawfully prescribed and used in compliance with the prescription or authority.
The discretion does not mean that the offending is lawful — it simply creates a limited avenue for the Magistrate to finalise the matter without interfering with the person’s licece. This remains a discretionary power, and the Magistrate will need to be satisfied about all relevant considerations. If you fall into this category, thorough preparation is essential to give yourself the best chance of a favourable outcome. The right advice and documentation may be what keeps you on the road.
Combined offence of Drink and Drug Driving
The combined drink and drug driving offence is found in Section 49(1)(bc) of the Road Safety Act 1986. Penalties upon a finding or plea of guilty are serious, and vary considerably depending on an offender’s prior history. Mandatory licence loss provisions apply, and the disqualification periods are found in Schedule 1AB of the Road Safety Act 1986.
The minimum disqualification periods for combined drink and drug driving are substantially higher than those for drink driving alone, and far exceed the penalties for drug driving in isolation. It is also critical to understand that imprisonment is a possibility for a second or subsequent combined offence. Maximum custodial terms range from 6 to 18 months, depending on prior offending and the level of alcohol detected. The applicable minimum licence loss is governed by whether the offender has committed an offence under Section 49(1) of the Road Safety Act within the preceding 10 years, measured from the date the prior matter was finalised by the Court to the date of the current offence.
The most common Drug Driving offences under Section 49(1) of the Road Safety Act 1986 are as follows:
- Driving under the influence of intoxicating liquor or drugs
- Drug Driving Offences
- Driving while impaired by a drug
- Drink and Drug Driving Offences
- Refusing to undergo a preliminary oral fluid test
Careful preparation of your matter is essential to reduce the impact on your life and livelihood. Seeking advice at the earliest opportunity puts you in the strongest position to achieve a positive result.
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My goal is to give you the best possible chance of staying on the road
Whatever has brought you to this point, the most important thing now is to get advice from someone with a thorough understanding of the law, the process, and the practical realities of your situation.
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