Category Archives:Drug Driving

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.

Drug Arrests at Dragon Dreaming Music Festival

It is common knowledge that music festivals are always crawling with police and their sniffer dogs.

But it may be surprising how many people get picked up at each festival for drug possession.

The most recent example was at the NSW Dragon Dreaming festival, which ran from October 24 to October 27.

About 2,500 people attended the festival during a four-day period, and dozens were been caught out by the 18 police officers and their two drug sniffer dogs.

Police also conducted drug testing for motorists leaving the festival, catching two drivers who tested positive for driving with an illicit substance present in their system.

74 people were charged with drug offences including drug possession, drug supply and drug driving.

Inspector Evan Quarmby described this result as “disappointing.”

The drugs found included cannabis, ecstasy, heroin, ice and magic mushrooms.

Taking drugs to a music festival always carries a high risk of detection these days.

But if you run into trouble with the law, do you know your rights?

Police do have the power to search you in some circumstances, but these powers are confined by the law and police regulations.

What are my rights during a search?

If a drug sniffer dog sits next to you at a music festival, this may constitute a ‘reasonable suspicion’ that drugs are in your possession and you therefore can be subjected to a search.

If you are being searched, you have the right to remain silent and avoid answering any police questions except for giving your identification details.

If the person searching you is not in a police uniform, you can request that they provide identification.

Even if the person is in uniform, you have a right to request their name and place of duty.

You must be told why you have been detained, and if they are searching you and find nothing they must release you as soon as possible.

What are my rights when it comes to sniffer dogs?

While the effectiveness of drug detection dogs has been questioned, police in NSW have the authority to use them without a warrant.

However, sniffer dogs cannot be used everywhere without a warrant.

Places where they can be used are:

  • When a person seeks to enter or leave any place where the consumption of liquor occurs unless the premises are primarily a restaurant or other dining place
  • When a person seeks to enter or leave a public place such as a sporting event, music festival, dance party or other forms of entertainment is being held
  • When a person seeks to enter or leave public transport
  • In some occasions in a tattoo parlour, and
  • On anyone in a public place in Kings Cross

Police will need a warrant to carry out drug detection operations using sniffer dogs in other situations.

Even if you consider a small amount of drug use to be relatively harmless, the law doesn’t always see it that way.

Even first offenders caught out with only a couple of pills of ecstasy or a small amount of cocaine can receive a fine and a criminal record if their cases aren’t prepared properly and presented persuasively in court.

If you have been caught out during a music festival, getting legal advice and court representation from a specialist drug defence lawyer may be an effective way of minimising the chance of getting a criminal record, even if you have a relatively large number of pills or other drugs and wish to plead guilty.

If you are charged with drug supply due to the fact that you have a relatively large amount of drugs (which is called ‘deemed drug supply’), a top drug lawyer will often be able to get the ‘supply’ charge dropped on the basis that you plead guilty to the less serious charge of drug possession.

Your lawyer can then work towards helping you to avoid a criminal conviction, so that you can get on with your life without being worried about the potential impact of a criminal record on your career and travel prospects.

What Should I do if I have been Charged with Drug Driving?

Police have been testing drivers for the presence of drugs since 2007, when a pattern emerged of marijuana users being present in fatal accidents.

Currently, drug driving is said to account for 11% of the death toll on our roads each year.

And this year, police have been detecting and charging an increasing number of people for drug driving.

While testing for alcohol is more common, the rate of positive readings for those tested for drugs was five times as high as those tested for a prescribed concentration of alcohol.

Thousands of drivers have been charged with drug driving since the testing started.

Drug testing is more expensive than testing for alcohol, and the test takes five minutes to complete.

Drivers must lick a pad that tests for the presence of cannabis, ecstasy and Methyl amphetamine.

If you are driving while affected by drugs or alcohol, police can charge you with driving under the influence (or ‘DUI’) but they will have to prove that you were actually affected when you drove.

This may require evidence from eye-witnesses such as police or civilians, or other evidence about your manner of driving.

Drug driving is driving is different because police don’t have to prove that you were actually affected by drugs when you drove.

They only need to prove that the drugs were present in your system at the time.

In NSW, it is against the law to drive a vehicle or to occupy the driver’s seat of a vehicle and attempt to put the vehicle in motion, or to supervise a learner driver while having drugs in your system.

The maximum penalty for drug driving is maximum penalty of a $1,100 fine and disqualification from driving for six months if it is your first major traffic offence within the previous five years.

The magistrate can reduce the period of disqualification to three months if there are good reasons to do so, for example if you otherwise have a good driving record and have a strong need for a licence.

If it is your second or more major traffic offence in the previous five years, the maximum penalty increases to a $2,200 fine and twelve months disqualification.

The magistrate can reduce the disqualification down to six months if there are good reasons.

In either case, the magistrate can choose to deal with you without a conviction, disqualification or a fine even if you plead guilty.

This is possible through a section of the law known as ‘non conviction order’.

A good lawyer will be able to prepare your case thoroughly and present it to the court in such a way as to maximise your chances of getting a section 10 dismissal or conditional release order.

It is an offence in NSW to refuse a drug test.

If you do refuse to take a drug test, you may be arrested on the spot, taken to a police station and detained there or taken to a hospital and forced to undergo testing.

Although the law can be tough, there are several possible defences to drug driving including:

  • Duress, which is where you were forced to drive
  • Necessity, which is where you drove to avoid due to an emergency situation,
  • Honest and reasonable mistake, which is where you did not believe drugs were in your system and this belief was reasonable in all of the circumstances, and
  • Prescribed medication, which is where the drugs in your system were prescribed by a doctor or pharmacy and taken in accordance with the instructions.

You will be found not guilty if any of those defences are established.

In addition, you may be able to contest the reliability of the drug tests or to show that the police did not follow proper procedure when they tested you.

All of these can be reasons for the prosecution to fail in court, or for charges to be withdrawn before the matter even reaches a defended hearing.

If you are charged with drug driving, it may be a good idea to book yourself in for a free first appointment with an experienced drug lawyer who will be able to show you the best way forward in your case.