Facing a Drug Driving charge in NSW can be a stressful experience, while no one anticipates finding themselves in such a situation, it happens. When it does you will need the best defence.

It's imperative to arm yourself with a strong legal team as recent legal changes has made these charges tougher to beat. With a notable increase in drug driving offences over the years, it has led to stricter laws and consequences making the severity of this offence more serious.

This article will guide you through the practical steps and considerations to take in order to increase your chances of successfully contesting a drug driving charge in NSW.

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WHAT IS DRUG DRIVING IN NSW?

Section 111 of the Road Transport Act 2013 (NSW), prohibits the act of drug driving making it a punishable offence in NSW. This refers to when an individual is found with an illicit substance present in their oral fluid, blood and/or urine whilst driving a motor vehicle.

It doesn’t matter whether you felt the effects of the drugs; if the police discover any trace of illicit substances in your system, you can be charged with drug driving. All that's needed for a conviction is that you were driving or even attempting to put the vehicle in motion and found with any ‘prescribed illicit drug’ in your system

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WHAT ARE THE PENALTIES FOR DRUG DRIVING?

The maximum penalty for this offence is a fine of $3,300 and/or a 6-month imprisonment term. For repeat offences within the last 5 years, penalties escalate, allowing for a fine of up to $5,500 and/or up to a year of imprisonment.

Beyond these primary penalties, additional penalties including section 10 dismissal, conditional release order, intensive corrections order, etc may be imposed by the court, based on the specific circumstances surrounding your offence.

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HOW TO GET A DRUG DRIVING CHARGE DISMISSED IN NSW

Navigating a drug driving charge in NSW can be complex, but there are several defences that may enable the charge to be dismissed or beaten. Our drug driving lawyers will discuss and pinpoint the most effective defence tailored to your unique case, ensuring every aspect is meticulously evaluated and leveraged.

Here are 7 ways you can beat a drug driving charge in NSW:

1. Questioning the legitimacy of the traffic stop

2. Challenging the accuracy of the drug tests

3. Proving the presence of legal prescription

4. Employing the defence of honest and reasonable mistake

5. Presenting the defence of duress or necessity

6. Police unable to prove elements of offence

7. Police testing you on your property

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Questioning the legitimacy of the traffic stop

In NSW, a defence can be built around the legality of the traffic stop. The law requires that police have a valid reason for stopping a driver. If it can be proven that the police acted without reasonable grounds, the evidence collected, such as drug test results, may become inadmissible in court.

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Challenging the accuracy of the drug tests

A common defence refers to the accuracy of the drug test, if there is reason to believe that the equipment used was faulty or if the test was administered incorrectly, it could render the results invalid. For example, inaccuracies, improper handling, or faulty testing equipment could make the results unreliable, thus forming grounds for challenging the charge.

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Proving the presence of legal prescription

If the substances found in your system are due to a legally prescribed medication, this could serve as a defence. Proof of a valid prescription and that you were using the medication as directed by a healthcare professional will be necessary. If morphine is detected in your blood or urine due to consumption for legitimate medical reasons, you can be acquitted of the charges.

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Employing the defence honest and reasonable mistake

The defence could argue that you had consumed a substance without knowledge of its illicit nature or without awareness that it could impair your driving. If you had a legitimate reason to believe you were not under the influence of drugs when driving, for instance, if you took medication that unknowingly contained a prohibited substance then it might be possible to argue that you made an honest and reasonable mistake.

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Presenting the defence of duress or necessity

If it can be demonstrated that you were driving under the influence due to an emergency or under duress where a genuine and immediate threat to your safety or another person/s, it might be possible to use this as a defence, showing that there were no reasonable alternatives available.

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Police unable to prove elements of offence

If the police cannot conclusively prove all elements of the drug-driving offence, such as actual driving or operation of a vehicle, this could undermine the prosecution's case. As all elements of the offence must be proven to a standard of ‘beyond reasonable doubt’, meaning prosecution must be almost certain of the facts they present.

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Location and time of test

Schedule 3 of the Road Transport Act (2013) does not allow police to conduct any drug or alcohol testing whilst a person is on their property. If the police conducted a drug test while you were on your private property, such as a driveway, this could be a substantial defence. Also if there was a significant delay (more than two hours) between driving and testing, this is a factor which could impact the admissibility and reliability of the test results.

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LEGAL OUTCOMES FOR DRUG DRIVING OFFENCES IN NSW

If going through the possible defences does not lead to a dismissal of the drug driving offence, pleading guilty is your next option. Pleading guilty does not equate to your case resulting in defeat, in fact it opens up various strategic avenues that your lawyers can use in order to mitigate consequences.

Seeking advice from an experienced and knowledgeable team like Faraj Defence Lawyers, means your guilty plea can be managed with a tactical approach, aiming to secure the most favourable outcome. Our drug driving lawyers will work diligently to present compelling arguments, negotiate for reduced penalties, and emphasise factors that work in your favour, ensuring that every possible legal strategy is employed.

Here are some common penalties:

• Section 10 Dismissal
• Conditional Release Order
• Fine
• Community Corrections order
• Intensive Corrections Order
• Full time custodial sentence

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Section 10 Dismissal

In the context of Drug Driving, a Section 10 Dismissal is a favourable outcome where the court dismisses the charge without recording a conviction. While the court acknowledges the crime committed, they chose to believe that letting you walk out the courtroom criminal record free is the best solution.

This is not handed out lightly, courts typically look at many factors when deciding whether you're eligible, this includes nature and severity of the case, your character and past record, and other mitigating factors that may have led to the offence.

Conditional Release Order

Conditional Release Orders (CRO) offer a level of leniency and are typically used in less severe drug driving cases. A CRO involves the offender being released on certain conditions, similar to a good behaviour bond, this can include things like participation in rehabilitation programs, periodic drug testing and others, in order to reduce the likelihood of reoffending.

Your lawyer can advocate for you to receive a CRO non-conviction, meaning you complete the order without having a conviction written against your name.

Fine

Police or magistrates can impose a fine as another penalty option, while it does not result in imprisonment, it can be a substantial burden especially if the amount is significant. Fines are a common penalty in drug driving cases, acting as a financial punishment.

The fine varies based on the severity and specific circumstances of the offence, and it is designed to serve as a deterrent, discouraging individuals from engaging in drug driving behaviours. If the court sentences you a fine, you'll be given a 28 day window to settle the amount.

Community Corrections Order

A Community Correction Order (CCO) is an intermediate penalty. In drug driving cases, a CCO encompasses various conditions such as community service, program participation, and possible curfews. It is a more rehabilitative approach, allowing individuals to still remain within the community whilst being treated.

Intensive Corrections Order

An intensive corrections order (ICO), is a community based custodial sentence used in NSW, essentially its an alternative to prison, meaning you remain in the community with certain conditions imposed. It is quite rare to receive an ICO for a drug driving offence, however may be applied to individuals who are repeat offenders or pose a certain threat to the community.

Full Time Custodial Sentence

Full-time imprisonment is when you are detained in a jail cell for a certain period of time determined by a Judge or Magistrate. This sentence is last resort and is very rare when it comes to drug driving charges, typically a punishment of imprisonment is reserved for the most serious of cases and usually involves repeat offenders or cases of grievous nature. The courts will consider all available options and weigh various factors before resorting to such a severe penalty.

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WHAT TO DO IF POLICE SUSPEND MY LICENCE?

A licence suspension due to drug driving is a serious consequence that restricts your driving privileges, impacting daily life and responsibilities. In NSW, this action is often immediate, particularly in cases involving serious drug driving offences. The suspension period varies based on the severity of the offence and any prior convictions.

It's crucial to act promptly, as appeals must be filed within 28 days from the date of the magistrate’s decision. Begin by consulting with a legal expert, who can guide you through the intricate appeal process, ensuring all legal avenues are explored to challenge the suspension effectively.

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WHAT'S THE DIFFERENCE BETWEEN DRUG DRIVING AND DRIVING UNDER THE INFLUENCE (DUI)?

Section 112 (1a) of the Road Transport Act (2013) makes Drinking Under the Influence (DUI) a punishable offence of up to $3300 penalty units and/or imprisonment of 18 months. The offence of DUI refers to when an individual is found driving or putting into motion a vehicle with the presence of alcohol or any other drug in one's system. It does not require a level of BAC or evidence to show the level of impairment, rather any amount of alcohol consumption presence can be grounds for committing the offence. So how does it differ from the offence of Drug Driving?

Drug Driving specifically targets the presence of illicit substances in a drivers system rather than alcohol. Regardless of whether you were affected by the substance, you can be charged with the offence of drug driving. A DUI offence on the other hand requires to show that the driver was actually affected, for example things like lack of coordination, swerving, driving at high speeds and other violations whilst driving must be proven. It's not enough for a DUI offence that the drug was in your system but rather that you were genuinely impaired whilst driving.  

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ACT NOW: PROTECT YOUR DRIVING PRIVILEGES WITH PROFESSIONAL HELP

Navigating the complexities of drug driving charges requires strategic legal action. Vital to your defence is expert legal counsel like Faraj Defence Lawyers, essential for making informed, strategic decisions to safeguard your driving privileges.

Our defence lawyers can enhance your chances of going through the legal process successfully, ensuring that every possible legal avenue is explored and utilised in defending your rights and driving future. Choose professional help and act decisively.

If you or someone you know has been charged with the offence of drug driving, contact one of our specialised drug driving lawyers today and receive your first initial consultation free.

Call us on (02) 8896 6034 or email us at af@farajdefencelawyers.com.au

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