I've been Charged with Drug Driving in NSW - What are the Penalties for this Offence & What Should I Do?

Introduction

Being charged with a drug driving offence in NSW can be a daunting and stressful experience. It's essential to understand what constitutes a drug driving offence, the potential drug driving penalties, and the steps you can take to navigate the legal process when charged with driving under the influence of illicit drugs. This comprehensive guide will walk you through the key aspects of drug driving charges and provide valuable insights on how to approach your case.

What is a Drug Driving Offence in NSW?

In New South Wales, drug driving is an offence under Section 111 of the Road Transport Act 2013. It involves driving a motor vehicle with the presence of a prohibited illicit drug in your system, such as:

• Cannabis (THC)
• Methamphetamine (speed, ice)
• MDMA (ecstasy)
• Cocaine

Importantly, you can be charged with a drug driving offence in NSW even if your driving ability was not impaired. The mere presence of the illicit substance is sufficient for the offence.

What are the Drug Driving Penalties in New South Wales?

The drug driving penalties in NSW depend on whether it is a first or subsequent offence within a 5-year period for the offender.

First Offence:

• Maximum fine of $2,200
• Licence suspension or disqualification of 3-6 months (minimum of 3 months)

Second or Subsequent Offence:

• Maximum fine of $3,300
• Licence disqualification of 6-12 months (minimum of 6 months)

See the below table for a more comprehensive overview of the potential drug driving penalties in New South Wales.

In addition to these penalties, being found guilty of a drug driving offence in Sydney or elsewhere in NSW will result in a criminal record.

What Must Be Proved for a Drug Driving Offence?

To convict you of a drug driving offence in NSW, the prosecution must prove beyond reasonable doubt that:

1. You were driving a motor vehicle, or occupying the driver's seat and attempting to put the vehicle in motion, and
2. A prohibited illicit drug was present in your oral fluid, blood, or urine.

The illicit drugs tested for in NSW's roadside drug testing include:

• Delta-9-tetrahydrocannabinol (THC) - the active ingredient in cannabis
• Methylamphetamine (speed, ice)
• 3,4-methylenedioxymethylamphetamine (MDMA, ecstasy)
• Cocaine

What are the Possible Defences to a Drug Driving Charge in NSW?

While defences to drug driving charges are limited, there are some situations where you may be able to fight a drug driving offence, such as:

• Honest and reasonable mistake of fact: You genuinely and reasonably believed that you did not have any illicit drugs in your system at the time of driving.
• Necessity: You were compelled to drive to prevent serious, imminent harm.
• Duress: You were threatened or coerced into driving, and your response was reasonable given the circumstances.
• Involuntary consumption: The illicit substance was consumed without your knowledge, such as in a spiked drink.
• Medicinal use: The illicit drug was taken for legitimate medical reasons and did not impair your driving.
• Improper testing procedures: The police failed to adhere to proper roadside drug testing protocols, undermining the reliability of the saliva test results.

However, recent court decisions have made it more difficult to rely on these defences for drug driving offences, particularly the defence of honest and reasonable mistake.

Should I Plead Guilty or Not Guilty to a Drug Driving Charge?

When facing a drug driving charge in NSW, you'll need to decide whether to plead guilty or not guilty. Each path has its own implications and potential outcomes.

Pleading Not Guilty to a Drug Driving Offence

If you believe the prosecution may struggle to prove the essential elements of the drug driving offence beyond a reasonable doubt, you may choose to plead not guilty. A seasoned drug driving lawyer in Sydney can evaluate the prosecution's case, identify any weaknesses, and advise you on the most appropriate course of action. They may be able to negotiate for the drug driving charges to be dropped or mount a strong defence in court to fight for a not guilty verdict.

Pleading Guilty to a Drug Driving Charge

If you decide to plead guilty to a drug driving offence, the drug driving penalties will vary based on whether it's your first or subsequent offence within a five-year period.

For first-time offenders found guilty of driving with an illicit substance in their system, the court may impose:

• An automatic 6-month licence disqualification (reducible to a minimum of 3 months)
• A maximum fine of $2,200

Repeat offenders within a 5-year window face harsher drug driving penalties in NSW:

• An automatic 12-month licence disqualification (reducible to a minimum of 6 months)
• A maximum fine of $3,300

However, in certain circumstances, a skilled drug driving lawyer may be able to persuade the magistrate to grant a Section 10 dismissal or a Conditional Release Order without conviction, allowing you to avoid a criminal record, licence disqualification, and fine for the drug driving offence.

To bolster your chances of a lenient outcome, consider:

• Gathering character references that attest to your good standing in the community
• Expressing remorse through a thoughtfully crafted letter of apology
• Enrolling in a traffic offender program to demonstrate your commitment to rehabilitation
• Engaging knowledgeable Sydney criminal lawyers to present your case persuasively in court

Regardless of your chosen plea, seeking legal advice from a professional well-versed in drug driving offences is crucial to protect your rights and interests.

Can Medicinal Cannabis Lead to Drug Driving Charges in NSW?

With the increasing use of medicinal cannabis in Australia, many patients are finding it challenging to drive without risking a drug driving charge. As of 2021, there were an estimated 1 million medicinal cannabis patients in Australia, with NSW likely accounting for a third to a half of that total.

Currently, there is no medical defence to drug driving charges in New South Wales, meaning even if you are using cannabis legally and are not impaired, you can still be charged with an offence of driving with an illicit drug in your system. This creates a significant burden for patients who rely on their vehicles for daily activities and work.

The growing number of medicinal cannabis users has led to calls for reforms to drug driving laws in NSW, such as introducing a medical defence similar to those in Tasmania and the United Kingdom. However, the NSW government has yet to implement such changes, leaving patients vulnerable to prosecution for drug driving offences.

How Have Recent Court Decisions Impacted Drug Driving Charges?

A recent NSW Court of Criminal Appeal decision in February 2024 has significant implications for drug driving cases. The court ruled that drug driving is an "absolute liability" offence, meaning the defence of honest and reasonable mistake is no longer available.

This decision has made it even more difficult to successfully defend against drug driving charges, as the mere presence of a prohibited illicit substance in your system is now sufficient for a conviction, regardless of whether you were aware of it or not.

The absence of the honest and reasonable mistake defence is particularly concerning for medicinal cannabis patients, who may unknowingly test positive for THC on a roadside drug test even if they are not impaired. It also has potential ramifications for individuals who consume illicit drugs unknowingly, such as through drink spiking.

Legal experts have called for urgent legislative intervention to address the implications of this decision and ensure that individuals are not unjustly penalised for circumstances beyond their control when it comes to drug driving offences in NSW.

Is NSW's Zero Tolerance Approach to Drug Driving Unjust?

NSW's drug driving laws take a 'zero tolerance' approach, penalising drivers for the mere presence of an illicit drug in their system, regardless of impairment. This differs from drink driving offences, which set prescribed limits based on blood alcohol concentration.

Many argue that this approach is unjust and not based on road safety objectives, as it doesn't distinguish between impaired and non-impaired drivers. For example, THC can be detected in a person's saliva days or even weeks after consumption, long after any impairing effects have worn off.

In contrast, other jurisdictions like the UK and Canada have adopted impairment-based testing models that better align with the principles of road safety and fairness. These approaches focus on detecting and penalising drivers who are actually impaired by drug use, rather than those who may have consumed illicit substances in the past but are not currently affected.

Critics of NSW's zero-tolerance approach argue that it unfairly criminalises individuals who pose no risk to road safety and disproportionately affects vulnerable groups such as medicinal cannabis patients. There is a growing push for reforms that would bring drug driving laws more in line with the evidence-based, impairment-focused approach used for alcohol.

Conclusion

Facing drug driving charges can be overwhelming, but understanding the law, penalties, and your options is crucial. Seeking expert legal advice from Sydney defence lawyers early on can make a significant difference in the outcome of your case if you are found guilty of driving with an illicit drug in your system.

If you've been charged with a drug driving offence in NSW, it's essential to engage experienced Sydney criminal lawyers who can guide you through the process, protect your rights, and help you achieve the best possible result. They can assess the strength of the prosecution's case, advise you on potential defences, and represent you in court if necessary.

It's also important to stay informed about developments in drug driving laws, particularly in light of recent court decisions and the ongoing debate around the fairness and effectiveness of the NSW government's zero-tolerance approach.

While the current legal landscape poses significant challenges for those facing drug driving charges, there is hope for change as the community becomes more aware of the issues and advocates for reform. In the meantime, seeking skilled legal representation and understanding your rights and options is crucial to navigating this difficult situation and moving forward with your life.

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