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Drug Driving Offences
Here’s a bit more information on Drug Driving Offences:
There are 2 common drug-driving offences under the Road Transport Act in NSW that apply to:
- A driver; and
- A person occupying the drivers seat, and attempting to put the vehicle in motion; and
- A person supervising an “L plate” driver.
Be aware that of the content below applies to all these people.
- S111 of the Road Transport Act: makes it illegal to drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample.
NOTE: under this section, a person does not have to be under the influence of the drug. It has often been the situation that a person has ingested the drug (e.g. smoked a joint, or had a line) days before being tested and if the drug is still in their oral fluid sample, the offence is established. This is not the situation with alcohol – if you drive when you are sober, but you had a drink a few days before, you are not breaking the law and the drinks you had days ago will not show up on the testing device.
- S112 of the Road Transport Act: makes it illegal to drive while under the influence of an illicit substance.
NOTE: under this offence the drug-test reveals the person is driving while they are still under the influence of the drug being tested.
Mobile Drug-Driving Tests:
The most common way people are being charged with drug-driving offences are through the Mobile Drug Testing (“MDT”) units being conducted by police.
Motorists are asked pull over, and and after presenting their license, and possibly doing a random alcohol test, the police present the driver with a small plastic test stick to rub along their tongue (to lick).
This gives the police an oral fluid sample.
TYPES OF DRUGS TESTED AT MDT:
There are 2 types of drugs being tested at random or roadside Mobile Drug Testing units in NSW.
- Cannabis
- Methamphetamine (including speed, ice, ecstasy – virtually any drug derived from amphetamines).
If the MOBLE drug test is positive the person is taken to the “drug bus/van”, or back to the police station, where a second test is conducted. This second test involves providing the police with a sample of saliva. The saliva test is inserted into a testing machine (currently: the Drager 5000). If this second test is positive the driver is prohibited from driving for 24 hours; AND the samples are sent to the police forensic lab (FASS) for a third test.
THE PENALTIES FOR DRUG DRIVING OFFENCES:
If caught for any of these offences, the person will face THE LOCAL COURT. Unless you can get a section 10 (see blog “what is a s10 and why does everyone want one?”), penalties include loss of license, fine, and a criminal conviction.
Here is an extract from the RMS website (click link below for PDF) that sets out the maximum penalties if you can’t get a s10. Scroll down from the alcohol offences to find the maximum penalty for drug-driving offences.
Drug & alcohol offences – Offences & penalties – Safety & rules – Roads – Roads and Maritime Service
IMPORTANT NOTES:
If the first test is positive and the second test is negative (which is often the case) the samples are sent to the police forensic lab, and the person may still ultimately be charged under either s111 or s112. In other words, if you test positive in the roadside test, but negative at the station, it’s not over. You could find yourself being charged are few weeks, or months, later (depending how long FASS takes with the third round of testing).
If you’re stopped and given an MDT because your driving is erratic or comes to the attention of police, and the MDT is negative, but the police suspect you are under the influence of illegal or prescription they can insist you undertake a blood or urine test. These blood and urine test will reveal most drugs (legal and illegal, prescription or otherwise), and if a person tests positive, the charge is likely to be driving under the influence which is different from s111 and s112.
Wherever there is a fatal accident all drivers undergo blood and urine testing.
*** NOTE: These explanations are not intended to be legal advice. This is a simplified, summary of the law, in plain English. Contact Local Court Lawyers for more information.
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