Drug Driving

Drug Driving Lawyers Melbourne

As Drug driving lawyers, it would be rare for a workday to go by without one of our traffic lawyers dealing with a matter at court that relates to drug driving. With offices in Melbourne, Dandenong, Ringwood, Frankston, Moorabbin, Geelong, Ballarat and Werribee, Dribbin & Brown Drug Driving Lawyers have dealt with thousands of drug driving charges over the years.

On the right hand side of the screen you will see the complete list of drug driving charges open to police. 

The legislation is quite complicated and there are a number of charges that relate to drug driving. All are encapsulated under s49 of the Road Safety Act 1986. There are common penalties for particular classes of drug driving offences, importantly what you should take away from the following classification of penalties is that it is rarely in your interests to refuse to participate with police when they request a an oral, blood or urine sample. If there is a defect in the charge or the matter can be defended, then it is better to provide the sample and challenge the substantive offence later to avoid more serious penalties applying.

What types of drugs do police test for?

In relation to drug driving offences, “drug” is defined as a “prescribed drug” referenced at section 3 of the Road Safety Act 1986, as “methylamphetamine (amphetamine or ice), 3, 4-Methylenedoixy-N-Methylamphetamine (MDMA or ecstasy) or delta-9-tatrahydrocannabinol (cannabis).

The Drug Driving Offences

The legislation in relation to drug driving is all over the place. The following is an overview of the Drug Driving Charges that exist in Victoria, providing the penalties, the mandatory licence loss and where appropriate, the immediate suspension provisions. For more information on combined drug and drink driving offences, see the individual charges on the right-hand side. This synopsis relates to drug driving charges only.

Prescribed content offences: (offences where drugs are only detected)  

• s49(1)(bb) prescribed content of a drug present whilst driving or in control of a motor vehicle,
• S49(1)(h) prescribed content of drug present in oral sample within 3 hours of driving or being in control of a motor vehicle
• S49(1)(i) prescribed content of drug present in blood taken within 3 hours of driving or being in control of a motor vehicle.

Each of the above drug driving charges has the same penalty and mandatory minimum time off the road as follows;

• 1^st Offence 12 Penalty Units and a minimum of 6 months disqualification
• 2^nd Offence 60 Penalty Units and a minimum of 12 months disqualification
• Subsequent and all other offences 120 Penalty Units and a minimum of 12 months disqualification
• Section 85 immediate suspension powers do not apply in relation to the above offences.

Refusal to participate in oral fluid test

S49(1)(eb) refuse preliminary oral fluid test or evidentiary oral fluid testing

• In relation to refusal to participate in an oral fluid test, the penalties are the same as the above penalties, but the mandatory minimum licence disqualification  is longer, being 2 years for a first offence and 4 years for a second offence.
• Section 85A of the RSA applies to this offence and police can suspend a driver immediately once they are charged with the above offence, but only at the time of charge, not at the time of the offence see section 85A of the RSA.

Regarding all of the above listed offences, it is important to note that you cannot be sentenced to a term of imprisonment. Unbelievably we have dealt with cases where clients have been sent to gaol because the lawyer representing them in the first instance was not aware that gaol was not open to the magistrate and therefore the lawyer has not informed the magistrate of the same. Dont let that happen to you. 

Driving whilst impaired by drugs

s49(1)(ba) impaired by a drug whilst in control or driving a motor vehicle

• 1^st Offence 12 Penalty Units
• 2^nd Offence 120 Penalty Units and 12 months gaol
• Subsequent offence 180 Penalty Units and 18 months
• Time off the road, disqualified for 12 months in relation to a first offence and minimum of 2 years in relation to a second and any subsequent offence.
• Section 85A of the RSA applies to this offence and police can suspend a driver immediately once they are charged with the above offence, but only at the time of charge, not at the time of the offence.

Refusal to participate in drug impairment assessment, blood or urine test:

• s49(1)(ca) refuse to under drug impairment assessment,
• S49(1)(ea) refuse blood or urine sample per s55B following impairment assessment or refusal of blood following an accident.

The above offences are the only offences that attract gaol in relation to suspected drug driving. The penalties are as follows;

• 1^st Offence 12 Penalty Units
• 2^nd Offence 120 Penalty Units or to 12 months
• Subsequent offence 180 Penalty Units and 18 months
• Disqualified first offence 2 years and second and all subsequent offences 4 years.
• Section 85A of the RSA applies to this offence and police can suspend a driver immediately once they are charged with the above offence, but only at the time of charge, not at the time of the offence.

How do you know whether the offence is considered a first offence?

• Section 50AA of the Road Safety Act 1986 tells us that any relevant offence where the court date is 10 years or older from the date that the new offence has occurred will not be considered a prior matter when determining the applicable mandatory licence loss.
• That said section 48(2) tells us that all prior offences, even those where no conviction was recorded, will be considered a prior offence for the purposes of determining the maximum penalty.
• What does this mean? What is a prior matter for determining the mandatory minimum time that a magistrate must disqualify someone from driving and what is considered a prior matter for determining what is the maximum penalty open to the court, are determined using different criteria.
• Please also be aware, a prior matter relating to drink driving will be considered a relevant prior matter in relation to a drug driving offence.
• It is really important that your lawyer properly understands the above information.

Avoid a Conviction for drug driving:

It used to be the case that a non-conviction for drug driving still resulted in a traffic record and was disclosable on a police check. That is now no longer the case with the introduction of the Spent Conviction legislation. What does this mean? If you plead guilty at court, a submission can be made to ask the magistrate to record the outcome, without recording a conviction. In these circumstances it will mean that you keep your record clean. Dribbin & Brown Criminal Lawyers are very experienced at making submissions to a magistrate urging the court to not convict.

Why engage a lawyer in relation to drug driving charges?

Court is not a place you want to be attending by yourself. The police prosecutors are there to prosecute, the magistrate is there to judge you and if you don’t have anyone in your corner the reality is that things can go very wrong.

Drug driving law is not straight forward, there are many things that need to be considered to properly advance a charge of drug driving. If you can afford to engage a lawyer, you should, because although you might get lucky and navigate the rapids of the Victorian court system by yourself unscathed, it is unlikely. The last thing that you want to occur is being in a position where you have to appeal your matter to the County Court. As of 2 July 2021 that process is much more difficult. It is critical that you get it right first time.

Why Dribbin & Brown?

• Dribbin & Brown Drink Drug Lawyers all have significant experience representing clients charged with drug driving.
• Our solicitors care about getting you the best outcome in your case, this is a philosophy that is instilled in all Dribbin & Brown Lawyers.
• There wouldn’t be firm in Victoria that has represented more clients charged with drug driving. It is this experience that counts.
• All our lawyers attend regular continuing professional development and other training events specifically relating to drug driving.
• Check out our google reviews, they all from real clients sharing their experiences with our lawyers. 

If you have been charged with drug driving, don’t make the wrong choice, call our specialist drug driving lawyers, to make an appointment today.