Driving with the presence of cannabis or amphetamine in an oral fluid sample

drug offence lawyer

This is colloquially known as a “s111 offence”, because that’s the section of the Roads Transport Act that renders driving with the presence of a drug, in your saliva, an offence.  But not any drug…… read on.

The mobile drug testing (“MDT”) units are limited to testing only for cannabis (pot, weed, green, hash, mull, dope, reefer, …..whatever has cannabis resin in it) and for the “amphetamine family” – MDMA, speed, ice, ecstasy, ketamine, (and other drugs that include an amphetamine – I’m sure there’s heaps I don’t know of.)  In short, the cannabis and amphetamine families of drugs.

You do not need to be impaired by the drug.  You don’t have to be “under the influence”.  If your driving under the influence, that’s a different offence! (s112).  To be clear about this: to be charged, you simply have to ingested/used drugs in the cannabis or amphetamine* family of drugs possibly days (maybe even weeks!), before you are given the Mobile Drug Test. (Unlike drink-driving – where you have to be impaired or affected by alcohol to be charged, over .05, with mobile drug testing, you do not have to be impaired to be charged.)

What happens then?:

If the first test, being the saliva sample at the roadside, shows a positive result to you having used/ingested the drug, then it’s back to the police station for a second test – generally the Drager test.  A machine at the police station that takes another fluid sample and tests it for the cannabis or amphetamine family of drugs.  (These Drager tests are often unreliable, and return a negative result, despite the first test at the roadside being positive.  Often people leave the police station thinking they are clear, but there’s a third test.)

Whether the Drager test is positive or negative, there is a third test.  The Forensics unit of the Police (called FASS) conduct this third test and it often takes weeks for the sample to be tested and the local police to be notified of the result.  If this FASS test is positive, the driver will be charged.  Often people who tested positive at the roadside, then leave the police station after the Drager test returning a negative result and think “phew, it was negative, I’m in the clear” – but they are unaware that their sample is being tested by FASS.

Then the Court Attendance Notice turns up with a court date, and sets out the charge:

S111 of the Road Transport Act: Driving with the presence of cannabis or amphetamine in an oral fluid sample

It is also an offence to drive with other drugs (such as cocaine, morphine, heroin, etc) present in a urine or blood sample, but clearly these urine and blood tests are not conducted at the roadside, under the current mobile drug-testing (“MDT”) regime.  The MDT is a saliva test.  If the police suspect another drug is present in a person’s system, the driver may be tested by urine or blood analysis.

 

This is NOT legal advice.  This is designed to take some of the mystery out of the law for ‘google-lawyers’.  I repeat – it is not legal advice.  But we hope it helps.

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