The offence of Drug Driving was introduced in NSW in 2006 giving the Police the power to randomly test drivers for prohibited substances such as cannabis, speed, ice & crystal meth in their saliva, blood and urine.
If you have been charged with a drug driving offence it is important to seek legal advice immediately so any possible defences you may have to the charge can be explored. With expert legal representation it is possible to obtain a Section 10 or good behaviour bond for drug driving offences. You don’t always have to plead guilty following a positive test result.
There are two sections of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) under which Police can charge drivers in NSW.
Drug Driving – Section 11B
Section 11B of the Act is used to prosecute drivers found with traces of illicit drug or drugs in their saliva, blood or urine. Under the Act the Police have the power to randomly test users on the road using what is known as a ‘lick’ test. If the driver fails the lick test they can then be asked to attend a hospital to undertake a blood test. You do not need to be affected by a drug at the time of the test to be found guilty of this offence. Drugs like cannabis can stay in your blood stream for days and then later be detected in your saliva, urine or blood samples. If you are found guilty of an offence under Section 11B you will automatically lose your licence for a minimum period of 6 months; this period is doubled for repeat offenders. You may also be liable to pay a fine; the maximum fine payable is $1,100. There are no custodial sentences for charges under Section 11B.
Driving Under the Influence of a drug – Section 12
The Police can also charge you under Section 12 of the Act if they suspect you are driving under the influence of drugs, even if no traces of illicit drugs are detected in a roadside test. The offence of Driving Under the Influence of a Drug is harder to prove as it relies on the observation by Police of erratic or suspicious driving. However following a car accident the Police can charge you with this offence. The penalties for driving under the influence of a drug are severe and can include large fines, long periods of disqualification and imprisonment. For a first offence the penalities are $2,200 fine, 9 months imprisonment and 12 months disqualification from driving.
Defending drug driving and drug DUI charges
Many people are unaware that there are defences available to the charges of drug driving and drug DUI. The approach to take when defending any charges of Drug Driving or Drug DUI will depend on the specific circumstances of your case. However, some common defences are:
- Medicinal purposes – if you test positive to morphine or methadone, for example you may be able to prove that the morphine was for medicinal purposes
- Technicalities – in some cases it is possible to challenge the legality of a charge on a technicality
- Driving under the Influence – if you are charged with Drug DUI it might be possible for you to argue that at the time you were driving you were not under the influence of a drug
Before you plead guilty call North Shore Criminal Law to seek advice on the specifics of your case and whether or not it will be possible to defend the charge.
What is a Drug Driving Test and do I have to consent to one?
In NSW, police have the power to carry out roadside drug driving tests. They can test for the presence of cannabis, ecstasy and methamphetamines (including speed, ice & crystal meth). These tests will not pick up other common substances, such as cocaine or heroin. The test conducted is oral, and involves licking the pad of a testing device. If the results of this test come back positive, you will then be required to undergo a second test. Refusing to undergo these tests is an offence, and can involve penalties as serious as for those who have tested positive.
If your second test is also positive, you will be restricted from driving for the next 24 hours. Your sample will be sent off for further tests, and you will not be charged at this stage. If this test is positive, you will then receive a court attendance notice within a few weeks.
Refusing to undergo a drug test, or failing to supply a sample, is treated very seriously by the law. Refusing to undergo a roadside oral test, refusing to supply a blood sample, or altering the amount of a drug before a test can result in a fine of $3,300, along with an automatic disqualification from driving for 3 years. Further, failing to supply a sample of blood or urine on demand, or after being involved in an accident, can lead to maximum penalties of a fine of $3,300, imprisonment for 18 months and disqualification from driving for 3 years.
What Can North Shore Criminal Law Do For You?
If you have been charged with a drug driving offence, it is very important to seek the advice of an experienced criminal lawyer, even though the police may attempt to convince you that pleading guilty is in your best interests. William Vahl of North Shore Criminal Law is an accredited criminal law specialist with over 20 years experience.
Call North Shore Criminal Law on (02) 9955 2298 or our 24 Hour Emergency Service on 0400 44 64 24 for advice on whether there is a defence available to you if you have been charged with Drug Driving or Driving Under the Influence of Drugs. Getting expert legal advice immediately will ensure that your rights are protected.