Defences to Drug Driving

With drug driving fatalities on the increase in NSW, police will be targeting drug drivers this year. The state government’s annual road toll figures reveal that while the overall number of fatalities from traffic accidents dropped in 2014 to the lowest level since 1923 when records began, drug driving accounted for nearly as many deaths as driving under the influence of alcohol. Of the 309 fatalities on the state’s roads last year, 15% were attributed to drink driving, while 11% were a result of drug driving.

Research from the NSW Centre for Road Safety also indicates that 40% of drug driving offences and fatalities involve a drug driver under the age of 30.

According to the centre, the road toll figures have prompted police to focus on drug driving in 2015 in a bid to reduce the number of fatalities as a result of people driving with illicit drugs in their system.

More drug drivers?

While the number of drug-related road fatalities has increased, so has the number of people detected for drug driving. According to NSW Police, the number of people detected drug driving doubled in 2014, with more than half of them showing a positive result for more than one drug in their system. This is not necessarily due to an increased number of motorists driving after taking drugs, new police methods have also become more sensitive at detecting drugs, and there has been an increased focus on testing for drugs by the roadside as well as alcohol.

So how do police test for drugs?

Roadside drug testing usually takes the form of a saliva test. A sample of saliva is taken via a swab and is analysed on the spot in a portable drug-testing machine. If the results show positive, the driver is immediately banned from driving for 24 hours and will be required to undergo further testing to determine the drugs involved and the concentration. This usually involves submitting a further saliva sample, which is then sent to a laboratory for testing.

Roadside drug tests can test for the presence of cannabis, methamphetamine and ecstasy, and it is an offence to refuse to provide a sample when requested. If you have been involved in a fatal road accident the police can obtain blood samples from you to test for the presence of drugs and alcohol.

What should I do if I test positive for drugs?

If you have been pulled over by police, tested and have returned a positive result for drug driving, it’s important to speak to a lawyer as soon as possible. Whether to plead guilty and accept the charges or to plead not guilty and defend the matter in court will depend on the situation and the strength of the police case against you.

Your lawyer will be able to help you determine your best course of action and help prepare your defence where applicable. In many cases, it is possible to defend a charge of drug driving, or even have the charges withdrawn.

Issues with the testing process

The roadside tests that check for the presence of drugs do not determine the level of drugs present. It is possible for the tests to detect drugs that were taken up to a week previously. While drugs taken a week before a test would be highly unlikely to be affecting your driving ability, unfortunately you can be convicted if any level of drugs is found in your blood, urine or saliva.

The laboratory test will determine the exact level and type of drugs detected in your system at the time you were driving, and from that police will make a decision as to whether to take the matter to court. Penalties for drug driving can include lengthy periods of licence disqualification fines, community service orders and even imprisonment.

Defences to drug driving charges

There are a number of defences you can use to defend a charge of drug driving, depending on the circumstances. In order for you to be found guilty of drug driving the prosecution, in this case the police, must prove that there were drugs present in your system at the time of driving.

However, if you weren’t aware that you had consumed drugs, for instance because your food or drink had been spiked, this can be a legitimate defence. It is called ‘honest and reasonable mistake’ and can be used to beat a drug driving charge.

You may also be able to avoid a conviction if the drugs that were detected in your system were for medicinal purposes and taken in accordance with your prescription or pharmacist’s instruction. Prescription drugs and codeine-based painkillers can lead to a positive reading on a drugs test and as long as their use is legitimate and the quantity found is in accordance with the medical instructions you were provided with, your lawyer will likely be able to have the charge dropped or thrown out of court.

In some cases it is also possible to dispute the factual evidence, if there has been a testing mistake or the results are inconsistent. This is because police must prove that the drugs were in your system at the time of driving. For instance, in the unlikely event that you consumed a drug after you got out of the car – for example, after a crash – you technically you can’t be convicted.

If you have been charged with drug driving the best thing you can do is seek advice from an experienced traffic lawyer.

Can I avoid a criminal record if I plead guilty?

If you wish to plead guilty to drug driving, a good lawyer will often be able to help you avoid a conviction and licence disqualification by persuading the magistrate to grant you a ‘non conviction order’.

A non conviction order means that, although you are guilty, the magistrate does not give you a conviction, disqualification or fine.

Factors that a magistrate can take into account when deciding whether to give you a non conviction order include:

• Your character and background,
• The circumstance of the offence and whether it can be categorised as ‘trivial’
• Your previous driving record,
• Whether you are remorseful,
• Whether there is a good reason why you should avoid a conviction, and
• Your need for a licence

There are several things that you can do to help persuade the magistrate to give you a non conviction order for drug driving, including:

• Obtain up to 3 character references,
• Write an apology letter to the court,
• Undertake a traffic offender program, and
• Enter an early plea of guilty.

An experienced lawyer will be able to guide and assist you with all of those things.

They will also be able to present your case persuasively in court to ensure that you avoid a conviction altogether, or obtain the minimum disqualification and fine if a section 10 dismissal or conditional release order is not appropriate.