Is Being High on Drugs an Offence?

We all know that drug possession is a crime, but what about simply being under the influence of illegal drugs?

Section 12 of the Drug Misuse and Trafficking Act makes it an offence to take illegal drugs (called ‘self-administration of drugs’), and section 13 makes it illegal to administer illegal drugs to someone else.

What are the penalties for self-administration of drugs?

The maximum penalty for self-administration is the same as for drug possession: imprisonment for two years and/or a fine of up to $2,200.

Very few people are sent to prison, and the most common penalty depends on the drug taken.

For those found to be on cocaine, the most common penalties were ‘section 10 dismissal and conditional release order’; which means no criminal record. 58% of people were fortunate to escape a criminal record and a fine by getting a non conviction order. The next most common penalty was a fine, which comes with a criminal record.

Surprisingly, 67% of those found to be on cannabis were given a fine. Only 18% managed to avoid a criminal record by way of a non conviction order.

What do the police need to prove?

In order for a person to be found guilty of self-administration, police must prove beyond reasonable doubt that you:

1. Self administered; or

2. Attempted to administer,

3. A prohibited drug,

4. To yourself.

It is not illegal to self-administer in a medically supervised injecting centre, such as the one in Kings Cross.

Proving the charge

It is nowhere near as common for people to be charged with self administration as drug possession.

This is partly because self administration can be more difficult to prove, as there won’t normally be direct evidence that you took illegal drugs rather than a legal substance.

The charge can potentially be brought on the basis of police observations; such as bloodshot or glazed eyes, dilated pupils, erratic behaviour or slurred speech. However, it often possible to beat such cases on the basis that there is a reasonable possibility you took a legal substance such as alcohol or a legal medication, rather than an illegal drug.

The charge is more often brought after a drug test, but as discussed below, police can only drug test people in certain situations.

One of the most common defences against the charge of self administration is that you were ‘spiked’, or were otherwise unaware that you had taken an illegal drug.

What if I confess?

Your chances of being found guilty are far higher if you tell police that you knowingly took a drug.

However, courts have found that if you were unfamiliar with illegal drugs, were of good character and were intoxicated when you made the confession, your statement may have little weight in proving your guilt (for example, Petty sessions review 1981 R A Brown 1979).

When can police require a drug test?

Police do not have the power to drug test people anywhere and anytime.

However, clause 6 of Schedule 3 of the Road Transport Act gives police the power to conduct random drug tests upon drivers. The suspicion of certain firearms offences also empowers police to perform drug tests.

If you are suspected of a drug offence, contact a specialist drug lawyer right away to find out your rights and how to get the best possible outcome in your situation.