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Drug
Driving Law in Victoria
It is an offence to
take drugs (including many legal
drugs) and drive a motor vehicle in
Victoria. There are four offence
types:
- driving or being
in charge or a motor vehicle while
under the influence of alcohol or
any drug to such an extent as to be
incapable of having proper control
of the motor vehicle (s.49(1)(a) Road
Safety Act 1986),
- driving or being
in charge of a motor vehicle while
impaired by any type of drug
(s.49(1)(ba) Road Safety Act),
- driving or being
in charge of a motor vehicle when
your saliva or blood contains any
trace of illicit drugs.(s.49(1)(bb),
49(1)(h) & 49(1)(i) Road Safety
Act)
- driving
or being in charge of a motor
vehicle when your saliva or blood
contains any trace of illicit
drugs and also contains more than
the prescribed concentration of
alcohol.(s.49(1)(bc) &
49(1)(j) Road Safety Act)
Driving
under the Influence - s.49(1)(a)
This is an old
offence and is often difficult to
prove especially in relation to drugs
because it is fairly technical yet
vague. For that reason the new drug
testing laws were introduced to make
it easier to detect and prosecute
drug-affected drivers. It is less
likely that police would charge
a drug-driver with this offence these
days given the other alternatives
available. Any driver charged under
this old DUI offence always has a
reasonable chance of success if the
driver wishes to go to the effort of
getting competent lawyers and possibly
expert witnesses to help them. The
mandatory minimum period of licence
loss for this offence is 2 years
driving disqualification for a first
drink/drug drivng offence, 4 years
driving disqualification for a second
or subsequent drink/drug driving
related offence.
Driving
while impaired by a drug -
s.49(1)(ba)
When police find a
driver who appears to be affected by a
substance but yields a negative
preliminary breath test, the police
may require the driver to undergo a
drug assessment test. This involves
performing some walking and
coordination tasks, having the eyes
examined, and being video taped
throughout. If the police member
conducting the test forms the opinion
that the driver is affected by drugs,
the police can then require that a
doctor take a sample of the person's
urine or blood. The blood or urine is
then tested for drugs and if drugs
capable of impairing the driver are
found the driver is prosecuted. On a
strict reading of the legislation it
is not necessary to prove that the
drugs impaired the driver's ability to
control a motor vehicle. The term
'drug' has a very wide meaning and
includes over-the-counter and
prescription drugs. It is a defence to
a charge if the driver proves that his
impairment was the result of taking
prescription drugs in accordance with
a doctor's prescription. For further
information see my analysis of these
driving while impaired laws.
It is an offence to refuse to
cooperate with the drug assessment
test or to provide the blood/urine
samples requested.
Penalties:
First offence: 12 months minimum
licence cancellation and
disqualification.
Subsequent Offence: (which applies if
you have any drink driving or drug
driving prior) 2 years minimum
licence cancellation.
Refusing to provide a sample: at
least 2 years minimum licence
cancellation.
Fines are the same as per the
49(1)(bb) offence as set out in the
table below.
Saliva
Testing, driving with illicit drugs
- s.49(1)(bb), (h), (i)
These three sections
create offences of driving while being
over the limit (the prescribed limit
is any concentration) of certain
illicit drugs is in your body. The
types of drugs that are currently
prescribed as illicit under this
section are methylamphetamine and
delta-9-tetrahydrocannabinol
(amphetamine and cannabis).
The charge under
49(1)(bb) relates to having illicit
drugs in your body at the time of
driving. The charge under 49(1)(h)
relates to being over the limit at the
time you undergo a saliva test which
can be up to three hours after you
have stopped driving. The charge under
49(1)(i) relates to being over the
limit at the time you undergo a blood
test which can be up to three hours
after you have stopped driving. A
saliva test or blood test is required
to prove the offence under these
sections. If that sounds confusing you
probably should consult a drug driving
legal expert.
The saliva test can
be performed at random drug testing
stations in a similar manner to the
way booze buses currently conduct
preliminary breath tests, except a
saliva swab is taken and checked on
the spot rather than a sample of
breath. A blood analysis for drugs can
be performed on any blood sample that
the person is obliged to give under
any provisions of the Act. This
includes blood taken from a driver at
a hospital following a motor vehicle
accident, blood taken when a breath
test machine is not able to test your
breath properly, blood taken if a
driver requests a blood test after
having failed a breath test. So if the
police are getting a sample of your
blood for any reason it is likely they
will test it for illicit drugs and
charge you with drug driving if any
trace of a prescribed illicit drug is
detected. The saliva or the blood is
tested in a laboratory which can take
several months.
Driving
with both drugs and alcohol -
s.49(1)(bc) & 49(1)(j)
Although drink
driving and drug driving are presently
being detected individually, charged
separately and penalised at court in
the one hearing, the Andrews
government thought it would be
politically rewarding to create a new
offence of driving with both drugs and
excess alcohol at the same time,
rather than leave it to the courts to
determine how much the penalty should
be increased due to the aggravating
feature of multiple offences being
committed at the same time. The main
thing that has changed is that the
minimum penalty for this offence is 6
months extra licence disqualification
than what would have been imposed had
the person been found guilty of the
drink driving offence alone. If you
are found guilty of the combined
offence under s.49(1)(bc) or
s.49(1)(j), then at court the police
will withdraw the charges they have
laid for each of the individual
offences under s.49(1)(b), (f), (bb),
(h) or (i) upon you being found guilty
of the combination offence.
If this trend
continues we would see many hundreds
of new offences created, because every
existing offence could be coupled with
alcohol and/or drugs to create a new
combined offence, e.g. using a mobile
phone while driving over 0.05%.
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Penalties
for driving with
Cannabis or Amphetamine
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Traffic
Infringement notice
penalty
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Approximately
a $750 fine and 6 months
licence suspension
(s.89D(1AA)).
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Court
imposed penalty (first
offence)
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Fine
of between $0 and about
$2,000
At least 6 months licence
cancellation.
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Second
offence
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Fine
of between $0 and
about $10,000
At least 12 months licence
cancellation.
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| Third
or subsequent offence |
Fine
of between $0
and
about 20,000
At
least 6 months licence
cancellation.
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People
who lose their licence as a result of
drug driving offence must undertake a
drug education and assessment course
before being eligible to get their
licence back.
It is an offence to
refuse to cooperate with the police
when they are conducting a drug test,
or obtaining a blood sample.
These are relatively
new offences and are quite technical.
Defences are likely to be found and
tested over the next few years. If you
or your client has been charged with a
drug driving related offence, you
should seek expert legal
advice.
There are often ways to defend charges
and avoid licence loss in this new,
complicated and technical area of law.
Curiously, very few people who are
accused of drug driving bother to take
their case to court or even seek legal
advice about it. Perhaps this is
because police target young adults at
night clubs and dance/rave festivals
who are unlikely to be able to afford
to fight a court case, or perhaps
people are just glad they haven't been
charged with a drug use offence.
Interlocks
It is impossible to
be required to have an interlock
installed when you are relicenced
following licence loss solely arising
from a drug driving offence. However,
a
drug driving offence is a prior
offence for the purpose of determining
whether a person is required to have
an interlock condition on their
licence if they apply for relicensing
following a drink driving conviction.
Links:
VicRoads
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