It is illegal to drive with an illicit drug present in your system (Roads Transport Act 2013 (NSW) s111(1)). Police can detect the presence of illicit drugs in your system by testing your blood, urine or oral fluid (such as saliva). If illicit drugs are found, you can face heavy fines. Furthermore, this offence will result in automatic disqualification of your licence.

What is an illicit drug?

Prescribed illicit drugs include (Road Transport Act 2013 (NSW) s4):

Marijuana or cannabis
THC
Speed
Ecstasy
Cocaine

What does the prosecution need to prove?

The prosecution does NOT have to prove that your driving was impaired.

As stated by the New South Wales Parliament (quoted in Budgen; Halper v R [2015] NSWDC 346):

“it need only be proved that the drug was present in the person’s sample. This sends a clear message to motorists that driving with any amount of these illegal drugs in the body is not tolerated in New South Wales.”

To be found guilty of driving with an illicit drug in your system, the prosecution has to prove:

1. That you:

Drove a vehicle, or
Occupied the driver’s seat of a vehicle and attempted to put it ‘in motion’, or
Occupied the passenger seat next to a learner driver who was driving, and

2. Had a prescribed illicit drug present, or a combination of prescribed drugs present, in your oral fluid, blood or urine

RECENT CASES

In the case of Bugden; Halper v R [2015] NSWDC 346, two men were found guilty of having an illicit drug in their system while driving, despite taking the drug days before driving.

Both men were pulled over for a random drug test, which showed positive for cannabis.

The first man told the court that he smoked cannabis the previous weekend, and had not taken any illicit drugs the day he drove. The second man told the court he smoked a joint three days before driving.

The court recognised that traces of cannabis in a person’s body are long lasting.

However, the court said parliament made the law with the intention “to prohibit driving with any traces of the illegal drug present in a person’s system.”

It does not matter whether or not a person’s driving is impaired by taking the drug, a person will be guilty just by having a trace of the illegal drug in their body.

In this case, the first man argued he used the drug privately for therapeutic purposes, after being in a serious car accident years earlier.

The second man argued this was the first time he had used cannabis, and provided references that showed he had good character and lacked a criminal record.

While both men were found guilty, fined $400, and had their licences disqualified, the court reduced the automatic disqualification period from 6 down to 3 months. On appeal both men received penalties where the court did not record a conviction against either of them subject to them completing a period of good behaviour.

The court warned that people should be aware that if they are found guilty of driving with an illicit drug in their system, their driver’s licence is at risk.

PENALTy

In New South Wales, the law view’s driving with an illicit drug in your system as a major offence (Road Transport Act 2013 (NSW) s4).

This means that if you are found guilty, even if it is your first offence, you face an automatic 6 month licence disqualification (Road Transport Act 2013 (NSW) s205).

If this is the second or subsequent time you have committed the offence, you will face an even longer period of disqualification.

You may also face a tougher penalty if you have a criminal record for other offences. The maximum disqualification period is unlimited.

Driving vehicle with illicit drug present - First Offence:
- Maximum court imposed fine: $1,100
- Automatic period of disqualification: 6 months
- Minimum period of disqualification: 3 months
- Maximum period of disqualification: Unlimited
Driving vehicle with illicit drug present - Second Offence:
- Maximum court imposed fine: $2,200
- Automatic period of disqualification: 12 months
- Minimum period of disqualification: 6 months
- Maximum period of disqualification: Unlimited

DEFENCES

Driving with an illicit drug in your system is a strict liability offence, which means it can be hard to raise a defence. Whether you intended to break the law by driving with a drug in your system or not, is not relevant.

Necessity

A defence may be available to you in extreme circumstances if you can prove it was necessary to break the law to avoid the death or serious injury of yourself or another person. This defence is called necessity. The leading case is R v Loughnan [1981] VR 443. The elements that need to be shown to successfully raise this defence are:

1. You broke the law to avoid certain consequences where you or someone else faced serious injury or death,

2. You honestly believed you were in a situation of imminent danger, and that belief was reasonable, and

3. The acts you took to avoid imminent danger were not disproportionate to the danger

You are required to provide evidence in order to raise this defence. This is called an evidentiary burden. The prosecution must then negate your defence beyond a reasonable doubt.

This defence is difficult to rely on. It usually applies in situations where people fear they or someone else will be killed or receive serious injury, because of a natural or human threat.

Duress

A defence may be available to you if an imminent threat of death or physical violence was made against you, or a family member, and that threat compelled you to break the law. This defence is called duress. The leading case is R v Lawrence [1980] 1 NSWLR 122. The elements that need to be shown to successfully raise this defence are:

1. A threat of death or really serious injury was made against you or a family member, and

2. You broke the law because you genuinely believed that if you didn’t, you or a family member would be killed or seriously injured (a subjective judgment), and

3. A reasonable person of the same age and sex as you, in the same situation, would have responded to the threat by acting in the same way (an objective judgment)

To rely on this defence, you are required to provide evidence to raise the issue. The prosecution then has to prove you acted voluntarily, and therefore, eliminate any reasonable possibility you acted under duress.

This defence is rarely relied on. It usually applies in serious cases for example when a death threat is made against you or a family member.

IMPACT

If you are found guilty of driving with an illicit drug in your system you may end up with a conviction on your criminal record.

Your record can impact your future, including job prospects. Many professions require a criminal history check.

Having a conviction on your criminal record can also restrict your travel, or migration to other countries.

Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.

YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH A DRIVING WITH ILLICIT DRUG OFFENCE

1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Obtaining advice in relation to making a statement to police or not. You need early advice.

2. Gather material immediately. You should immediately type out your version of what occurred during the incident and provide this to your lawyer – details get lost in your memory over time. This step is crucial. You should find out who else might be a witness to what took place and get their details.

3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.

If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry. We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal and traffic offences since 1998. There is no one better qualified to get behind you when you need it most.