Overview

What is Drug Driving?

Police may charge you with drug driving if a saliva swab taken during a roadside drug test detects the presence of illicit drugs in your system.

The test, which is carried out by licking the swab, is currently able to detect the presence of:

  • cannabis,
  • ecstasy/MDMA,
  • cocaine,
  • methylamphetamine (ice) and
  • amphetamines (speed).

If you fail the preliminary lick test, you will need to repeat it. If the result is the same, further laboratory analysis will be conducted. This can take 24 hours, and you will not be permitted to drive in that time. If the test confirms the presence of illicit drugs, you will be charged with the offence of driving with the presence of an illicit drug.

 

What are the penalties for Drug Driving?

If you are convicted, the potential penalties include:

First major offence within 5 years
Maximum fine $2,200
Maximum prison sentence 9 months
Minimum disqualification 6 months
Automatic disqualification (in the absence of a specific court order) 12 months
Second major offence within 5 years
Maximum fine $3,300
Maximum prison sentence 12 months
Minimum disqualification 12 months
Automatic disqualification (in the absence of a specific court order) 3 years

 

How severe is the charge against you?

A relatively recent charge, drug driving is considered to be quite important by governments who want to be perceived as being tough on the ‘drug epidemic’. Although it is viewed as a serious charge, it is still possible to argue for a section 10.

The penalties are similar to drink driving, however the way the severity of the offence is judged is very different. The amount of a drug in your system and whether you were affected by it while you were driving doesn’t matter, it is enough that it was detected. This is an important consideration, particularly in circumstances where some drugs like marijuana can remain detectable for days after ingestion.

Traffic Offender Intervention Program

If you participate in the Traffic Offender Intervention Program, a court may lessen the penalties imposed on you if you are found guilty of drug driving. This program covers traffic laws and rules, why it is important not to breach them and the potential consequences for yourself and the community if you do. After the course is finished, a certificate will be sent to the court and it can be taken into account in determining your sentence.

More information about the Traffic Offender Intervention Program

What to do if you have been charged with Drug Driving?

Do not take risks with your future or your licence.

If you have been charged with Drug Driving contact one of our experienced defence lawyers for advice – your first conference is free and we travel to all courts in NSW.  There may be numerous defences open to you if you are facing drug driving charges. Nyman Gibson Miralis can provide you with concrete advice and assistance on what you should do once you have been charged, including providing you with recommendations on whether you should obtain a pharmacological report or otherwise contest the charge.

Articles

Drug Driving Articles

FAQs

Drug Driving FAQs

Are the Drug Driving Laws Fair?

This law will subject many people to criminal prosecution. Our laws give a green light to heroin injecting in sanctioned rooms at Kings Cross but criminalize people who use drugs but are not at all affected when driving. Some say this law is to identify drug users in the community.

Children caught in possession of small quantities of cannabis can receive a caution – but not if they smoked cannabis say 2 weeks ago and drove on P plates.

Adults caught with small quantities of cannabis can receive a Criminal Infringement Notice instead of being prosecuted in a court. These laws penalize people for past drug use.

Nobody could possibly condone the use of a motor vehicle when under the influence of a drug – but this law is not concerned with a person being under the influence – those laws already exist (DUI).

Can I Avoid A Conviction for Drug Driving?

Yes. It is possible. The normal factors that allow a Magistrate to exercise discretion not to record a conviction apply to this offence. You should consult our accredited criminal law specialist for advice to try and protect your licence, your career and your future.

Can I Be Prosecuted Even If The Drugs Did Not Affect My Driving?

Yes. The legislation is aimed at people who drive with a drug in their system – even if it is not affecting their driving in any way. If you are driving under the influence of a drug, you risk prosecution for DUI or driving under the influence which carries serious penalties.

If I Used Drugs Days Ago Will I Fail the Lick Test?

Possibly. Some drugs stay in your body longer than other drugs. For example, cannabis can remain in your system for weeks and have no effect at all on your driving skills such a long time later if you are caught driving – however if the drug is detected by a positive lick test, you risk a criminal record, disqualification and a fine.

Another example – we have acted for people that have taken amphetamine 4 and 5 days prior to being random drug tested by lick test at the side of the road – and failed the tests.

If You Pass The Second Test Can You Still Be Prosecuted?

Yes. You only get to do the second test if you fail the lick test. If you pass the second test, the oral fluid will still be analyzed – after all, the first test indicated the presence of a drug. If the analysis indicates the presence of a drug, you will be prosecuted and face an automatic disqualification period of 6 months.

So I Can Get A Criminal Record For Having Drugs In My Blood – Though Not Affected?

Yes. The drug driving laws will make a lot of people criminals by getting convicted for drug driving. You do not have to be under the influence of the drug when driving – merely it has to be in your blood. You may have used cannabis a week or more before the ‘lick’ test and could lose your licence and get a criminal record. Of course using prohibited drugs is an offence. Now there are greater means of detecting those that use drugs. Laws for driving whilst under the influence of a drug have been around for years.

What If Police Found Drugs In My Car In My Possession?

Maintain your right to silence – say nothing – contact us immediately!

What are the Penalties for Drug Driving?

An automatic disqualification period of 6 months which can be reduced to not less than 3 months unless you are let off altogether. The fine is up to $1,100. A conviction will result in a criminal record.

If it is your second ‘major’ offence within 5 years, you face an automatic disqualification period of 12 months which can be reduced to not less than 6 months unless you are let off altogether. The fine is up to $2,200.

A major offence does not mean that it has to be the same previous offence. You can have a low range drink driving and then within 5 years be prosecuted for drug driving. The higher penalties will apply.

What is the Lick Test?

The lick test is random drug testing at the side of the road just like random breath testing (RBT). It involves licking a pad that will react if a prohibited drug is detected. If you fail the roadside test, you will be asked to take a further test. If you fail that test, you will be suspended immediately and your oral fluid sent for analysis. If you pass that test, a sample of your oral fluid will be saved and stored and sent for analysis but you will not be suspended on the spot.

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