Many psychoactive drugs and illicitly used prescription drugs, impair a person’s ability to drive safely and make sound judgments. Hence, driving under the influence of such substances is a major traffic offence. These substances are classified as illicit drugs, which include illicitly used prescription drugs, drugs prohibited under the definition of the Drug Misuse and Trafficking Act, 1985 and any other drugs included under statutory rules. Some of the drugs mentioned in Drug Misuse and Trafficking Act may be specifically excluded by statutory rules. Illicit use of prescription drugs is the use of pharmaceutical drugs not for the intended medical use but for recreational use, which is also termed as drug abuse.
Law enforcement authorities and any other authorised government personnel are empowered to conduct random stop checks of vehicle drivers. The tests, in whatever form, are mandatory and refusing to take them is a traffic offence itself. Preliminary tests for detecting cannabis, ecstasy, and methamphetamine can be conducted during roadside checks by the police using the portable testing equipment. The equipment tests a driver’s saliva in order to give a preliminary indication of any presence of such substances in the driver. If the test is positive, then the test is repeated. If it again turns out to be positive, then the person is immediately instructed not to drive for 24 hours, and the saliva sample is sent to a laboratory for conclusive analysis. The police may also decide to take the subject to the hospital for testing and collect blood and urine samples for further laboratory analysis. These laboratory analysis reports are prosecuted as cogent evidence, to which the Court gives high regard. The roadside test results are considered as a preliminary indicator and not sufficiently reliable to constitute irrefutable evidence in court.
For detecting cocaine and morphine, the roadside saliva test is not sufficient. If the police have reasonable grounds to believe that the driver had been driving under influence, or if the driver had been a part of an accident, then they may take that driver to the hospital, despite negative results on the saliva test, in order to obtain blood and urine samples. These samples are sent to the laboratory for conclusive analysis. All the illicit substances, such as ecstasy, cannabis, methamphetamine, cocaine etc, are all treated equally as far as the penalty goes.
Going to Court
If you are charged with the presence of illicit drugs in oral fluid, blood or urine, your matter is heard in court. If argued successfully, the court has the ability to afford leniency or dismiss the charges. Hiring a traffic infringement lawyer can help you mount a successful defence.
If prosecuted, for first-time offenders, the penalty for having an illicit drug in oral fluid, blood or urine is as follows:
- A fine of up to $1100
- Disqualification from driving for at least 3 months and automatic disqualification of 6 months, though there is no maximum limit for disqualification
For second or subsequent offence within 5 years, the penalty is as follows:
- A fine of up to $2200
- Disqualification from driving for at least 6 months and automatic disqualification of one year.
WHERE TO NEXT?
Sydney Criminal Defence Lawyers is a law firm that specialises in Criminal and Traffic Law. Our passionate and dedicated team of expert lawyers represent clients daily in the Local, District, and Supreme Courts of NSW.