Driving with the presence of certain drugs (other than alcohol) in oral fluid, blood or urine is an offence commonly known as Drug Driving.
The most common way people are being charged with drug-driving offences are through the Mobile Drug Testing (“MDT”) units being conducted by police. This gives the police an oral fluid sample.
The Law in relation to Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample is found in section 111 of the Road Transport Act 2013(NSW) which states:
“A person must not, while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug:
drive a motor vehicle, or
occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.”
Section 4 of the Road Transport Act 2013 defines prescribed illicit drug:
Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample for a first drug driving offence can be punished with a fine up to $1,100 and an automatic disqualification from driving for six months with a discretion for the magistrate to impose a minimum disqualification of 3 months.
For the second or subsequent offence, penalties increase to a fine of $2,200 and a twelve-month disqualification with a discretion for the magistrate to impose a minimum disqualification of 6 months.
Please note that some of the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.
Since Driving while there is a prescribed illicit substance present in an oral fluid, blood or urine sample is a criminal offence, the burden of proof lies on the Prosecution. The prosecution must prove a person’s guilt beyond reasonable doubt being:
The drug tests used by police are notoriously unreliable, and they can show up positive days after an alleged offender has taken any drugs. Also, there are certain procedures that police must undergo when testing a person for drugs, and if you can show that they have gone against procedure when obtaining the evidence against you, you could have the charges withdrawn.
Some of the other possible defences available for those charged with Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample can include:
For Drug Driving, Rep-Revive Criminal Lawyers® offers the following options:
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