The question of how to beat a drug driving charge is one that criminal defence lawyers answer almost daily.
This is unsurprising, given that losing your driver licence can have a significant impact. It may affect your employment as well as your ability to fulfil your personal commitments.
There are two separate offences for 'drug driving' in New South Wales. The first is 'driving with an illicit drug present'. The second is driving under the influence ('DUI').
What is the Offence of Drug Driving?
Drug driving is an offence of driving a motor vehicle with a prescribed illicit drug in your system under Section 111 of the Road Transport Act 2013 (NSW).
What is a 'prescribed illicit drug'?
The following are known as prescribed illicit drugs:
- Ecstasy (methylamphetamine)
- Speed (3,4-methylenedioxymethylamphetamine)
- THC (delta-9-tetrahydrocannabinol)
What is Driving Under the Influence (DUI)?
DUI is an offence of driving a motor vehicle while under the influence of a prescribed illicit drug under Section 112 of the Road Transport Act 2013 (NSW).
The prosecution must prove, beyond reasonable doubt, that:
- You were driving a motor vehicle on a road or road related area; and
- At the time you were under the influence of any drug or alcohol.
DUI lawyers explain that police must prove you were under the influence of a drug. However, the decision of DPP (NSW) v Kirby  NSWSC 1754 explains that the Crown do not have to prove that your driving was affected by drug or alcohol use.
Another major difference is that there is no need for the drug to be illicit. Even prescription drugs can cause you to fall afoul of this offence.
How are Drug Driving Charges Given?
As a driver in NSW, police have the power to subject you to random breath and saliva tests to detect the presence of drugs or alcohol in your system.
Saliva testing generally takes between three and five minutes to reveal whether drugs are present. Importantly, they only test for methamphetamine, MDMA, cocaine and THC in cannabis.
If the initial test is positive, police will carry out a further test to confirm the presence of illicit drugs in the body.
If you refuse or fail a breath test, you may face serious penalties which include jail time and lengthy licence disqualifications.
How to Beat a Drug Driving Charge?
You can beat a drug driving charge if:
- The prosecution cannot to prove all elements of the offence. This might involve failing to prove that:
- The accused was driving or in control of the vehicle;
- The drug test reading is reliable; or
- The police followed proper procedure, putting the drug test result in doubt.
- You successfully run the legal defence of honest and reasonable mistake;
- Police tested you while you were on your property (including your driveway), the evidence of the test will be inadmissible.
- Police tested you 2 hours or more after you drove a vehicle. If this is the case, the test will be inadmissible.
- Duress: You were forced to commit the offence.
- Necessity: Your actions were necessary. For example, if you were escaping imminent danger.
An experienced criminal lawyer will be able to identify any defences to drug driving early on and negotiate to have the case withdrawn by negotiating with Police.
You can view some recent cases where drug driving charges have been dismissed by clicking here.
Penalties for Drug Driving
The maximum penalty for drug driving is 6 months' imprisonment and/or a fine of $2200 for a first offence. This increases to 12 months' imprisonment and/or a fine of $3300 for a second or subsequent offence.
Driver Licence Disqualification for Drug Driving
The minimum disqualification for drug driving is 3 months for first offence. The automatic disqualification is 6 months.
For a second or subsequent offence, the minimum period of disqualification increases to 6 months, while the automatic disqualification is 12 months.
Penalties for DUI
The maximum penalty for Driving under the influence is 18 months' imprisonment and/or a fine of $3300. This increases to 2 years' imprisonment and/or a fine of $5500.
Can you go to jail for Drug Driving?
Yes, you can go to jail for drug driving. Analysing 298 sentencing cases, 6% of persons found guilty received a jail sentence of some kind. 4% of offenders were sentenced to full-time prison. Only 8% received no conviction for drug driving. All other offenders received convictions on their criminal record along with additional penalties (eg. good behaviour bond, fine, community correction order).
It is difficult to avoid a conviction for this offence. As such, you should speak to the best drug driving lawyers for the best chance of keeping your licence.
Penalty notice for drug driving
Police can issue you with a penalty notice (ie. fine) of $561 for driving with illicit drug present.
If you pay this fine you will not receive a criminal record, however, you will receive a notice of driver licence suspension (usually for 3 months).
To avoid this, you can file a NSW licence suspension appeal. This will take the matter to court where a magistrate can reduce the period of suspension.
That is why it is important that you contact us and speak to a specialist drug driving lawyer who can advise you on your options and what the best course forward is.
Police suspended my licence, what can I do?
If Police immediately suspend your licence for drug driving, you can appeal the suspension in the Local Court. However, you will need to show the Court that 'exception circumstances' exist which justify the lifting of the suspension.
You must file an application to lift a Police suspension within 28 days of the date you were issued with the police suspension.