Drug Driving Offence Lawyer
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Driving While Impaired by a Drug
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Exceeding the Prescribed Concentration of Drugs Present in the Body
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Driving Over the Concentration of Drug and Alcohol Limit
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Refusing to Undergo an Assessment for Drug Impairment
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Refusing to Comply With Directions to Provide Additional Samples for Analysis
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Refusing to Undergo an Oral Fluid Test
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Exceeding the Prescribed Concentration of an Illicit Drug (Blood Analysis) within 3 Hours of Driving or being in Charge of a Motor Vehicle
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Expca (Blood Analysis) of Alcohol and Drugs Within 3 Hours of Driving of Being in Charge of a Motor Vehicle
What is drug driving?
Drug driving is a broad term encompassing several offences outlined under Section 49 of the Road Safety Act (“RSA”). These offences cover situations where a driver is found to have drugs in their system while operating or being in control of a motor vehicle. This includes not only illicit substances but also certain prescription medications that may impair one’s ability to drive safely.
Offences related to drug driving include having a detectable level of a drug in oral fluid or blood within three hours of driving, as well as impairment by drugs while in charge of a vehicle. Additionally, refusing to undergo drug testing when required by police is itself an offence under this section, with specific penalties attached.
What the Prosecution Must Prove:
For a drug driving charge under Section 49 of the RSA, the prosecution must prove the following elements:
- You were either driving or in control of a motor vehicle.
- You had a prescribed concentration of a drug in your system or were impaired by drugs at the time.
- The prosecution may also need to demonstrate that you intended to drive “forthwith” if the charge hinges on control of a vehicle, rather than active driving.
In cases involving prescription drugs, it is relevant whether you followed medical advice for the medication and if you were aware that it could impair your ability to drive. If the defence can successfully argue that you were not in control of the vehicle or were following prescribed medical use, charges may be reduced or dismissed.
Where the Case Will Be Heard?
Drug driving offences under Section 49 are generally heard in the Magistrates’ Court as summary offences. However, if drug driving leads to more serious consequences, such as causing significant injury or death, the case may escalate and be heard in the County Court, still exercising summary jurisdiction.
Penalties for drug driving:
Penalties for drug driving offences vary based on the severity and specific nature of the offence, as well as any prior convictions. Offences under Section 49 carry both financial penalties and potential imprisonment for severe cases. Notably:
- There is a mandatory loss of licence upon a finding of guilt, with the duration of suspension or disqualification ranging from six months to four years, depending on the offence and any prior offences within the past ten years.
- For first-time refusals to undergo testing, there is a mandatory licence suspension of at least two years, doubling with any subsequent refusals.
- Penalties for supervising drivers found guilty may include fines up to 20 penalty units. In Victoria, the court has no discretion to reduce the mandatory licence suspension period.
Factors and Defences to Consider:
Several factors can impact the outcome of a drug driving case. If the substance detected is from a legal prescription, the defence may argue the accused was following medical advice and unaware of any impairment risks.
Additionally, demonstrating that the accused was not actually in control of the vehicle or did not intend to drive immediately can serve as a strong defence. For refusal offences, if there is a valid reason for non-compliance with testing, this may also serve as a defence.
Legal expertise can assist in exploring these defences or, where they are inapplicable, in reducing the sentence to the statutory minimum.
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What happens next?
After being charged with drug driving, a court date will be scheduled in the Magistrates’ Court. During the hearing, evidence of the drug’s presence, the defendant’s control over the vehicle, and any impairment will be reviewed.
The court will also examine if the presence of drugs was due to prescribed medication or an illicit substance, as this may impact the severity of the sentence. In cases without a viable defence, attention will shift to minimising penalties, particularly focusing on the statutory minimum licence loss.
The expert legal team at MK Law can assist in exploring potential defences or mitigation strategies. Note that work permits are not available in Victoria, and any licence suspension will apply to all driving activities, including for work purposes.
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- 2/212 Barkly Street, St Kilda Victoria, 3182 Australia
- 1800 130 120
- marcus@mklawfirm.com.au