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.

Ugur Nedim About Ugur Nedim
Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Drug Defence Lawyers.

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