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Drug Driving Is A Serious Offence

Drug driving is considered an extremely serious traffic offence in New South Wales (NSW). It poses a significant risk to public safety and can result in severe penalties, including imprisonment and lengthy license disqualifications.

What is Drug Driving?

Drug driving refers to operating a motor vehicle while under the influence of illegal drugs or certain prescribed medications that can impair driving ability. In NSW, it is an offence under Section 112A of the Road Transport Act 2013 to drive with the presence of:

  • Cannabis (THC)
  • Methylamphetamine (speed, ice)
  • MDMA (ecstasy)
  • Cocaine

Even trace amounts of these drugs in your oral fluid, blood, or urine can lead to charges.

What Does the Prosecution Need to Prove?

To secure a conviction for drug driving, the prosecution must prove beyond reasonable doubt that the accused person:

  1. Was driving or in control of a motor vehicle on a road or road-related area.
  2. Had the presence of an illicit drug (listed above) in their oral fluid, blood, or urine at the time of driving.

The prosecution typically relies on evidence from roadside drug tests, laboratory analysis of oral fluid or blood samples, and expert testimony to establish the presence of drugs.

What Are the Police Roadside Powers?

Under the Road Transport Act 2013, police officers have broad powers to conduct random roadside drug testing if they have reasonable grounds to suspect drug impairment. These powers include:

  • Conducting random roadside oral fluid (saliva) tests
  • Requiring the driver to undergo further oral fluid, blood, or urine testing at a hospital or police station
  • Immediately suspending or confiscating the driver’s license
  • Issuing a court attendance notice or on-the-spot fine
  • Impounding or seizing the vehicle
drug driving

What Are Other Related Charges Under Drug Driving?

Several other offences may be charged in conjunction with or as an alternative to drug driving, depending on the circumstances. These include:

  • Driving under the influence (DUI) of drugs or alcohol (Section 112 Road Transport Act 2013)
  • Refusing or failing to submit to a drug test (Section 116 Road Transport Act 2013)
  • Aggravated drug driving (Section 25A Crimes Act 1900)
  • Dangerous driving (Section 117 Road Transport Act 2013)
  • Negligent driving (Section 117 Road Transport Act 2013)

CASE STUDY

In a recent case from 2023, a 32-year-old man was charged with drug driving after being pulled over for a random roadside drug test in Western Sydney. The saliva test detected the presence of methylamphetamine (ice), and subsequent laboratory analysis confirmed the positive result. The man, a first-time offender, pleaded guilty and was sentenced to a 12-month good behavior bond, a $1,100 fine, and a 6-month license disqualification.

Summary Court Process (Local Court)

Most drug driving cases are heard in the Local Court as summary offences. The typical process involves:

  1. The accused is served with a court attendance notice outlining the charges.
  2. The matter is listed for mention, wHERE the accused can enter a plea.
  3. If pleading guilty, sentencing submissions are made, and the magistrate determines the appropriate penalty.
  4. If pleading not guilty, the matter proceeds to a defended hearing, wHERE evidence is presented, and the magistrate decides on guilt or innocence.

Indictable Court Process (District Court or Supreme Court)

In more severe cases, such as those involving aggravated drug driving or causing death or grievous bodily harm, drug driving charges may be prosecuted as indictable offences in the District Court or Supreme Court. This process involves:

  1. The accused is charged and brought before a Local Court for committal proceedings.
  2. If committed for trial, the matter is transferred to a higher court.
  3. The accused enters a plea, and if pleading not guilty, a trial date is set.
  4. At trial, evidence is presented before a judge and jury, who determine guilt or innocence.
  5. If found guilty, the judge imposes a sentence.

Local Court Sentencing Options

If convicted of drink driving in the Local Court, the sentencing options available to the magistrate include:

  • Fines (up to $3,300 for first offence, $5,500 for subsequent offence)
  • Community service orders
  • Good behavior bonds
  • Intensive correction orders
  • Prison sentences (up to 18 months for first offence, up to 2 years for subsequent offence)
  • License disqualification (mandatory minimum periods apply)

The magistrate will consider factors such as the driver’s PCA level, criminal history, and any mitigating or aggravating circumstances when determining the appropriate penalty.

Drug Driving

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According to the search results, the most common drugs detected in roadside drug driving tests in New South Wales and other Australian states are:

  1. THC (Delta-9-tetrahydrocannabinol) - The active component in cannabis/marijuana.
  2. Methylamphetamine - Found in drugs like methamphetamine, speed, ice, and crystal meth.
  3. MDMA (3,4-Methylenedioxymethamphetamine) - The active ingredient in ecstasy.

The roadside saliva/oral fluid tests used by police are designed to detect recent use of these three illicit drugs specifically. Some key points:

  • The tests do not detect other illicit drugs like heroin, cocaine, LSD etc. However, drivers impaired by any other drug can still be charged with driving under the influence (DUI).
  • The tests also do not detect prescription medications or over-the-counter drugs like cold/flu tablets.
  • THERE is no legal limit or "prescribed concentration" for these drugs. Any confirmed presence in oral fluid or blood samples can lead to charges, unlike alcohol which has legal limits.
  • THC from cannabis can typically be detected for several hours after use, while methylamphetamine and MDMA may be detectable for up to 48 hours depending on the amount consumed.

So in summary, while roadside drug tests can detect a range of substances, the three most commonly detected are THC, methylamphetamine, and MDMA due to their prevalence and the tests being designed specifically to identify these drugs in drivers.
Yes, tHERE are several potential legal defences that can be raised against a drug driving charge in New South Wales. Some of the key defences include:

  1. Challenging the Drug Test Results
  • Arguing that the testing procedures were not followed correctly by police
  • Questioning the accuracy or reliability of the testing equipment used
  • Providing evidence that the drugs detected were from permissible prescription medications taken as directed

  1. Honest and Reasonable Mistake of Fact
  • Claiming you had an honest and reasonable belief that you did not have illicit drugs in your system while driving, based on the time elapsed since consumption or advice received.

  1. You Were Not Driving or in Control of the Vehicle
  • Providing evidence that you were not actually the person driving or in control of the vehicle at the time of the alleged offence.

  1. Sudden or Extraordinary Emergency
  • Arguing you had to drive due to a genuine emergency situation, such as driving someone to the hospital for urgent medical treatment.

  1. Illegal Police Conduct
  • Showing the police did not have the proper grounds to pull you over and conduct a drug test in the first place.

  1. Delay in Prosecution
  • In some cases, an unreasonable delay by police in bringing charges could provide grounds to have the case dismissed.

The strength of any potential defence will depend on the specific facts and evidence in each case. It's crucial to seek advice from an experienced traffic lawyer who can review all the details and advise on the best defence strategy based on the circumstances. They may be able to negotiate with prosecutors or present compelling arguments in court to have charges reduced or dismissed entirely.

According to the search results, standard roadside drug driving tests in New South Wales and other Australian states are designed specifically to detect the presence of three illicit drugs:

  1. THC (the active component in cannabis/marijuana)
  2. Methylamphetamine (including ice, speed, crystal meth)
  3. MDMA (ecstasy)

The roadside saliva/oral fluid tests used by police cannot detect most prescription medications or over-the-counter drugs like cold/flu tablets. However, tHERE are a few key points regarding prescription drugs and drug driving tests:

  • While the standard roadside tests cannot detect prescription drugs, if a driver appears impaired, police can order a blood or urine test which can detect a wider range of substances, including certain prescription medications.
  • Drivers impaired by any drug, including prescription medications, can potentially be charged with driving under the influence (DUI) based on observed impairment and results of blood/urine analysis.
  • THERE is no legal limit or "prescribed concentration" for prescription drugs. Any amount that impairs driving ability can potentially lead to a DUI charge.
  • Drivers have a responsibility to ensure any prescription medications they take do not cause impairment that makes it unsafe to drive.

So in summary, while the standard roadside drug tests are designed to detect illicit drugs only, the presence of impairing prescription medications can still potentially lead to charges if drivers are observed to be impaired and further blood/urine testing is conducted.

Disclaimer

Please note that this information is general in nature and should not be considered legal advice. Every case is unique, and the specific circumstances and evidence will determine the outcome. If you are facing drug driving charges, it is strongly recommended that you seek legal representation from an experienced traffic lawyer who can advise you on the best course of action and defend your rights in court.

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