Facing a Drug Driving charge in NSW can be a stressful experience. While no one anticipates finding themselves in such a situation, it happens. When it does, you will need the best defence. Clients facing drug driving charges are seeking the best outcome, and a strong legal team is dedicated to achieving highly favourable results in these cases.

It’s imperative to arm yourself with a strong legal team, as recent legal changes have made these charges tougher to beat. With a notable increase in drug driving offences over the years, it has led to stricter laws and consequences, including the potential loss or suspension of your driver's licence, which can significantly impact your daily life and mobility, making the severity of this offence more serious.

This article will guide you through the practical steps and considerations to take in order to increase your chances of successfully contesting a drug driving charge in NSW.

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WHAT IS DRUG DRIVING IN NSW?

Section 111 of the Road Transport Act 2013 (NSW), prohibits the act of drug driving making it a punishable offence in NSW. This refers to when an individual is found with drugs present in their oral fluid, blood and/or urine whilst driving a motor vehicle, regardless of impairment. The law applies when drugs are detected in one's system, not necessarily based on recent drug use or current impairment.

It doesn’t matter whether you felt the effects of the drugs; if the police discover any trace of illicit substances in your system, you can be charged with drug driving. The offence includes driving with an illicit drug present in one's system, and illegal drugs such as cannabis, cocaine, and methamphetamine are commonly detected. All that’s needed for a conviction is that you were driving or even attempting to put the vehicle in motion and found with any ‘prescribed illicit drug’ in your system. Prescription drugs can also result in charges if they impair your driving ability.

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WHAT ARE THE PENALTIES FOR DRUG DRIVING?

The maximum penalty for this offence is a fine of $3,300 and/or a 6-month imprisonment term. A drug driving conviction can have serious long-term consequences, affecting your personal and professional life beyond just fines and imprisonment. Penalties may differ if this is your first offence, with repeat offences within the last 5 years escalating to a fine of up to $5,500 and/or up to a year of imprisonment.

Beyond these primary penalties, additional penalties including section 10 dismissal, conditional release order, intensive corrections order, etc, may be imposed by the court, based on the specific circumstances surrounding your offence. In some cases, the court may grant a non-conviction order, which allows you to avoid a criminal record for a drug driving offence if certain conditions are met.

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ABSOLUTE LIABILITY IN DRUG DRIVING CASES

Absolute liability is a crucial concept in drug driving cases in NSW. Under the Road Transport Act 2013, drug driving offences are treated as absolute liability offences. This means that if you are found with an illicit substance in your system while operating a motor vehicle, you can be found guilty of a drug driving offence, regardless of whether you knew the drug was present or intended to break the law. The prosecution does not need to prove that you were aware of the illicit drugs in your system. Simply having the illicit substance present is enough for a conviction.

This strict approach is designed to promote road safety, but it can also lead to challenging situations for drivers who may have unknowingly ingested illicit substances or who are using prescription medication that contains a prohibited drug. For example, medicinal cannabis users or those who have consumed food or drink contaminated with illicit substances can still be charged with a drug driving offence, even if they made an honest and reasonable mistake.

Because absolute liability removes the need for intent or knowledge, possible defences are limited. However, an experienced criminal lawyer can help you explore every available legal defence, such as challenging the accuracy of the drug test or the legality of the police stop. Understanding the implications of absolute liability is essential for anyone facing drug driving charges, as it highlights the importance of expert legal representation to navigate the complexities of the Road Transport Act and to seek the best possible outcome in your case.

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HOW TO GET A DRUG DRIVING CHARGE DISMISSED IN NSW

Navigating a drug driving charge in NSW can be complex, but there are several defences that may enable the charge to be dismissed or beaten. In some cases, legal arguments or negotiations can result in the case being withdrawn before trial. Saliva tests are commonly used by police to detect drugs present in a driver's system, and refusal to submit to a saliva test can lead to arrest and criminal charges. If the defence is successful, a not guilty verdict is possible. Our drug driving lawyers will discuss and pinpoint the most effective defence tailored to your unique case, ensuring every aspect is meticulously evaluated and leveraged.

Here are 7 ways you can beat a drug driving charge in NSW:

1. Questioning the legitimacy of the traffic stop
2. Challenging the accuracy of the drug tests
3. Proving the presence of legal prescription
4. Employing the defence of honest and reasonable mistake
5. Presenting the defence of duress or necessity
6. Challenging the prosecution's case by identifying weaknesses or inconsistencies in the evidence or failure to prove all elements of the offence beyond a reasonable doubt
7. Police testing you on your property

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Questioning the legitimacy of the traffic stop

In NSW, a defence can be built around the legality of the traffic stop. The law requires that police have a valid reason for stopping a driver. If it can be proven that the police acted without reasonable grounds, the evidence collected, such as drug test results, may become inadmissible in court.

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Challenging the accuracy of the drug tests

A common defence refers to the accuracy of the saliva test, which is commonly used in roadside drug testing. If there is reason to believe that the equipment used was faulty or if the test was administered incorrectly, it could render the results invalid. For example, inaccuracies, improper handling, or faulty testing equipment could make the results unreliable, thus forming grounds for challenging the charge.

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Proving the presence of legal prescription

If the substances found in your system are prescription drugs used as directed, this could serve as a defence. Proof of a valid prescription and that you were using the medication as directed by a healthcare professional will be necessary. If morphine is detected in your blood or urine due to consumption for legitimate medical reasons, you can be acquitted of the charges.

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Employing the defence of honest and reasonable mistake

The legal defence of honest and reasonable mistake could be argued if you had consumed a substance without knowledge of its illicit nature or without awareness that it could impair your driving. If you had a legitimate reason to believe you were not under the influence of drugs when driving, for instance, if you took medication that unknowingly contained a prohibited substance, then it might be possible to argue that you made an honest and reasonable mistake.

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Presenting the defence of duress or necessity

If it can be demonstrated that you were driving under the influence because you were escaping imminent danger, the necessity defence may apply. For this defence to succeed, you must prove that there was imminent danger and that no reasonable alternatives were available.

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Police unable to prove elements of offence

The prosecution's case must establish every element of the offence beyond reasonable doubt. If the police cannot conclusively prove all elements of the drug-driving offence, such as actual driving or operation of a vehicle, this could undermine the prosecution’s case. As all elements of the offence must be proven to a standard of ‘beyond reasonable doubt’, prosecution must be almost certain of the facts they present.

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Location and time of test

Schedule 3 of the Road Transport Act (2013) does not allow police to conduct any drug or alcohol testing whilst a person is on their property. If the police conducted a drug test while you were on your private property, such as a driveway, this could be a substantial defence. Also, if there was a significant delay (more than two hours) between driving and testing, this is a factor that could impact the admissibility and reliability of the test results.

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MEDICINAL CANNABIS AND DRIVING IN NSW

The use of medicinal cannabis is on the rise in New South Wales, offering relief for patients with a range of medical conditions. However, the law surrounding drug driving and medicinal cannabis remains strict. Even if you have a valid prescription and are using medicinal cannabis as directed by your doctor, you can still be charged with drug driving if a drug test detects the presence of THC, an illicit substance under NSW law, in your system.

Currently, there is no specific legal defence for medicinal cannabis users who are charged with driving with an illicit substance present. This means that patients who rely on medicinal cannabis for legitimate medical reasons face the same drug driving charges and penalties as those who use illicit drugs recreationally. The law does not distinguish between prescribed and non-prescribed cannabis when it comes to drug driving offences.

This situation has led to calls for reform, as many believe it is unfair to penalise patients who are not impaired and are following medical advice. If you are charged with drug driving as a result of medicinal cannabis use, it is vital to seek advice from an experienced criminal lawyer. A legal expert can help you understand your rights, guide you through the legal process, and explore possible defences to your drug driving charge, such as challenging the circumstances of the drug test or the accuracy of the results. Navigating these complex issues requires professional support to achieve the best possible outcome.

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LEGAL OUTCOMES FOR DRUG DRIVING OFFENCES IN NSW

If going through the possible defences does not lead to a dismissal of the drug driving offence, you may choose to plead guilty. To plead guilty means admitting the offence, but it does not necessarily result in the worst outcome. Instead, it allows your lawyers to use various strategic avenues to mitigate consequences, such as negotiating penalties or presenting factors in your favour.

If you wish to challenge the magistrate's decision after pleading guilty or being convicted, you can appeal to the district court. Additionally, if your driver's licence has been suspended by police, you may lodge an appeal in the local court to seek to lift the suspension. A drug driving conviction can result in driver licence disqualification or suspension, which may impact your employment and personal mobility.

Seeking advice from an experienced and knowledgeable team like Faraj Defence Lawyers, means your guilty plea can be managed with a tactical approach, aiming to secure the best outcome. Our drug driving lawyers will work diligently to present compelling arguments, negotiate for reduced penalties, and emphasise factors that work in your favour, ensuring that every possible legal strategy is employed.

Here are some common penalties:

• Section 10 Dismissal
• Conditional Release Order
• Fine
• Community Corrections order
• Intensive Corrections Order
• Full-Time Custodial Sentence

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Section 10 Dismissal

In the context of Drug Driving, a Section 10 Dismissal, also known as a non-conviction order, is a favourable outcome where the court dismisses the charge without recording a conviction. While the court acknowledges the crime committed, it chooses to believe that letting you walk out of the courtroom-criminal-record-free is the best solution.

This is not handed out lightly. Courts typically look at many factors when deciding whether you’re eligible, including the nature and severity of the case, your character and past record, and other mitigating factors that may have led to the offence.

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Conditional Release Order

Conditional Release Orders (CRO) offer a level of leniency and are typically used in less severe drug driving cases. A CRO involves the offender being released on certain conditions, similar to a good behaviour bond. This can include things like participation in rehabilitation programs, periodic drug testing and others, in order to reduce the likelihood of reoffending.

Your lawyer can advocate for you to receive a CRO non-conviction, meaning you complete the order without having a conviction written against your name.

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Fine

Police or magistrates can impose a fine as another penalty option. While it does not result in imprisonment, it can be a substantial burden, especially if the amount is significant. Fines are a common penalty in drug driving cases, acting as a financial punishment.

The fine varies based on the severity and specific circumstances of the offence, and it is designed to serve as a deterrent, discouraging individuals from engaging in drug driving behaviours. If the court sentences you a fine, you'll be given a 28 day window to settle the amount.

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Community Corrections Order

A Community Correction Order (CCO) is an intermediate penalty. In drug driving cases, a CCO encompasses various conditions such as community service, program participation, and possible curfews. It is a more rehabilitative approach, allowing individuals to still remain within the community whilst being treated.

Intensive Corrections Order

An intensive corrections order (ICO), is a community based custodial sentence used in NSW, essentially its an alternative to prison, meaning you remain in the community with certain conditions imposed. It is quite rare to receive an ICO for a drug driving offence. However, it may be applied to individuals who are repeat offenders or pose a certain threat to the community.

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Full-Time Custodial Sentence

Full-time imprisonment is when you are detained in a jail cell for a certain period of time determined by a Judge or Magistrate. This sentence is last resort and is very rare when it comes to drug driving charges, typically a punishment of imprisonment is reserved for the most serious of cases and usually involves repeat offenders or cases of grievous nature. The courts will consider all available options and weigh various factors before resorting to such a severe penalty.

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RECENT COURT DECISIONS AND DRUG DRIVING CASES

Recent court decisions have had a significant impact on how drug driving cases are handled in NSW. One of the most important developments is the confirmation that drug driving is an absolute liability offence. This means that the defence of honest and reasonable mistake is no longer available in most drug driving cases, making it more difficult for individuals to avoid a conviction if illicit substances are detected in their system.

The courts have also supported tougher penalties for drug driving offences, including longer licence disqualification periods and higher fines. These changes reflect a growing emphasis on road safety and a zero-tolerance approach to driving with illicit substances present. As a result, even first-time offenders can face serious consequences, and those with a second or subsequent offence may be subject to even harsher penalties.

For medicinal cannabis users and those who may have unknowingly ingested illicit substances, these recent decisions highlight the importance of staying informed about the law and seeking professional legal advice. An experienced criminal lawyer can help you understand how these court decisions affect your case, identify any possible defences, and work towards a favourable outcome. Keeping up-to-date with the latest legal developments is essential for anyone facing a drug driving charge, as the legal landscape continues to evolve and become more complex.

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WHAT TO DO IF POLICE SUSPEND MY LICENCE?

A driver's licence suspension is a key consequence of drug driving, restricting your driving privileges and significantly impacting daily life and responsibilities. In NSW, this action is often immediate, particularly in cases involving serious drug driving offences. The suspension period varies based on the severity of the offence and any prior convictions.

Appeals against a driver's licence suspension are made to the local court. It’s crucial to act promptly, as the appeal must be lodged within 28 days from the date of the magistrate's decision. Begin by consulting with a legal expert, who can guide you through the intricate appeal process, ensuring all legal avenues are explored to challenge the suspension effectively.

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WHAT'S THE DIFFERENCE BETWEEN DRUG DRIVING AND DRIVING UNDER THE INFLUENCE (DUI)?

Section 112 (1a) of the Road Transport Act (2013) makes Drinking Under the Influence (DUI) a punishable offence of up to $3300 penalty units and/or imprisonment of 18 months. The offence of DUI refers to when an individual is found driving or putting into motion a vehicle with the presence of alcohol or any other drug in one's system. It does not require a level of BAC or evidence to show the level of impairment. Rather, any amount of alcohol or drug detected in one's system can be grounds for committing the offence. So how does it differ from the offence of Drug Driving?

Drug Driving specifically targets the offence of having an illicit drug present in a driver's system rather than alcohol. Regardless of whether you were affected by the substance, you can be charged with the offence of drug driving if an illicit drug is present. A DUI offence, on the other hand, requires showing that the driver was actually affected, for example, things like lack of coordination, swerving, driving at high speeds and other violations whilst driving must be proven. It’s not enough for a DUI offence that the drug was in your system, but rather that you were genuinely impaired whilst driving.

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