Drug Driving Lawyers
If you are charged with a drug driving offence, you’ll need to go to court. These are some factors that the court will consider: What was your reading? What is your traffic history like? What was your manner of driving?
What is Drug Driving?
It is an offence in Queensland to be found to be driving a vehicle while a drug is present in your system. There are two types of offences that fall into this category;
Driving under the Influence of Drug
Driving under the influence of a drug is treated the same as high range drink driving. However, Police do not have to prove a prescribed concentration of a drug, simply that the person is under the influence of the drug.
Driving Whilst Relevant Drug Present in system
This is a slightly less serious charge. For the charge of Driving Whilst Relevant Drug Present, the police do not need to prove that the person was in any way affected by the drug, they just need to prove that the relevant drug was in their system. The three types of drugs that the police generally test for are; Cannabis, Meth and Ecstasy.
If you are charged with drug driving then there is a mandatory minimum disqualification of your drivers licence of 1 month. You may be eligible to make an application for a restricted work licence.
When you are stopped by the police they will subject you to a roadside test. If that test provides a positive result then they will detain you for the purposes of a secondary test. The police will probably suspend your drivers licence for 24 hours at that time. That secondary test will be sent off to the laboratory to be analysed. If that second test proves positive then the police will issue you with a notice to appear to go to court.
Section 79(2AA) of the Transport Operations (Road Use Management) Act (Qld)
This law states the offence of driving etc. while relevant drug is present in blood or saliva or
Any person who, while a relevant drug is present in the person’s blood or saliva —
(a) drives a motor vehicle, tram, train or vessel; or
(b) attempts to put in motion a motor vehicle, tram, train or vessel; or
(c) is in charge of a motor vehicle, tram, train or vessel;
is guilty of an offence
Elements of a Drug Driving Offence
It is the duty of the prosecutor to prove beyond a reasonable doubt that the Defendant has committed the offence. Every charge has a number of elements that the Prosecutor must prove beyond a reasonable doubt. For the charge of Driving Whilst Relevant Drug Present the Prosecution must prove;
- Defendant – The Prosecutor has to prove the identification of the offender;
- Driving – The person must be driving or in charge of the motor vehicle;
- Vehicle – It must be a ‘vehicle’ as defined under the legislation;
- On a road or road related area
- Drug – The item detected must be an illicit drug
- Was present – The drug must be present in your system.
Drug Driving Penalties
If you are convicted of drug driving you are liable to a maximum penalty of imprisonment not exceeding 3 months, or a fine of up to 14 penalty units.
For second or subsequent offences the penalties increase. Namely a second offence within 5 years, carries a maximum penalty of 6 months imprisonment and/or a 20 penalty unit fine.
For a third, and any subsequent, offence within 5 years the maximum penalty increases to a maximum 9 months imprisonment and/or a 28 penalty unit fine.
Disqualification
Upon convicting an individual of drug driving the Court is required to disqualify them from holding or obtaining a licence for a minimum of 1 month for a first offence.
For a period of 3 months for a second offence, and an automatic period of 6 months for a third or subsequent offence.
You may be eligible to make an application for a restricted work licence if;
- You are the holder of a current open class Queensland Drivers Licence; and
- You have not had any previous disqualifications, suspensions (except SPER) or cancellations of your drivers licence in the last 5 years; and
- You need your drivers licence for work purposes
Will I lose my licence for drug driving?
In Queensland, if a person is convicted of Drug Driving, then the court could impose one of the following penalties:
- Jail (suspended, parole or actual time);
- Intensive Corrections Order;
- Probation;
- Community Service Order;
- Fines.
The actual penalty will depend on the circumstances of the matter including the seriousness of the offence and the individual circumstances and background of the Defendant.
Possible Defences to a Drug Driving Charge
There are a number of defences available to drug driving charges, but not every defence is available to every charge. You will need to seek specific legal advice to see if you have a defence available to you for a drug driving charge. Some of the common defences available in criminal charges are;
- Necessity;
- Mistake of Fact;
- Public Safety;
- Self Defence or defence of another person;
- Intoxication;
- Provocation;
- Accident;
- Duress;
- Compulsion;
- Insanity;
- Automatism
Which Court will my drug driving matter be heard in?
The charge of Drug Driving will be heard in the Magistrates Court in Queensland. The charge will be heard and determined by a Magistrate alone whether you plead guilty or not guilty. There is no jury in the Magistrates Court.
What should I do if the police want to speak to me about a Drug Driving allegation or if I am charged with Drug Driving?
You have the right to remain silent. You DO have to provide police with your name, date of birth and contact details. You should NOT answer any questions, make any statement or participate in any interview with the police. You should be polite to the officer but insist that you want to talk to your lawyer. You have the right to phone a friend, relative or lawyer.
Call an Expert Drug Driving Lawyer
If you are charged with a drug driving offence, it is very important that you seek immediate legal advice. Our team of drug driving lawyers at Brooke Winter Solicitors can give you over the phone advice. We have a solid reputation as expert Criminal Lawyers and can represent you in court.
Call us on 1300 066 669 if you have any questions. We can assist you no matter where you are located and can appear in every court.
FAQs
How do the Police test drivers for drugs?
Similar to drink driving, under the law, the Police can ask you to pull over at any time and request a random drug test from you. This initial test is generally done by Police taking a swab sample of your saliva. Further, if the Police reasonably suspect that you have been driving or have been in charge of a vehicle whilst under the influence of drugs, they can make you take a blood test.
Failing to provide police with a specimen of your saliva or blood when requested and without lawful excuse can result in being charged and having to go to court. If found guilty and convicted of failing to provide a specimen, you will face strict penalties and lengthy disqualification periods.
What types of drugs are police testing for?
Similar to drink driving, under the law, the Police can ask you to pull over at any time and request a random drug test from you. A saliva test will generally detect drugs such as cannabis, MDMA, and methylamphetamine (Speed or Ice).
If you have taken any of these drugs, they are likely to stay in your system for long periods of time and you should be aware of this prior to driving or being in charge of a vehicle. If you are caught drug driving, the police do not have to prove that you were not driving safely. It is simply enough to have drugs in your system at the time of driving a vehicle or being in charge of a vehicle to be charged with an offence.
The police say that I have drugs in my system but I was not under the influence at the time of driving?
If you are the driver of a motor vehicle and the police require that you provide a mouth swab for the purpose of the detection of drugs, then you must comply with their request. If you fail to provide a sample then you may be charged. If a positive preliminary sample is provided on the roadside then the police will request that you provide a second test. You must comply with that request. The second test will be sent to the police laboratory for analysis. If that second test is positive then you will be served with an analyst certificate and a notice to appear to go to court.
It does not matter that you were not under the influence of drugs at the time of driving, the offence is driving whilst relevant drugs are present in your system.
Will a conviction be recorded if I am convicted of a drink driving or drug driving offence?
If you are found guilty or plead guilty to offences concerning drink or drug driving, a conviction will likely be recorded against you on your traffic history. In Queensland, there are both traffic histories and criminal histories. A conviction for drink or drug driving does not appear on your criminal history.
Under section 12 of the Penalties and State Sentences Act, the court has the power to consider whether or not to record a conviction in circumstances where a person has not received a term of imprisonment. If you are not subject to a term of imprisonment and you wish for the court to consider not recording a conviction against you, you need to make submissions concerning the following factors and why you say a conviction ought not be recorded:
- the nature of the offence; and
- Your character and age; and
the impact that recording a conviction will have on you including your economic or social well being or your chances of finding employment.
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