Driving under the Influence of Drugs

Drug driving is contained within section 111 of the Road Transport Act 2013 (NSW), and states that a person must not drive a vehicle, occupy the driver’s seat, attempt to put the vehicle in motion, or instruct a learner driver with

Roadside drug tests have become more prominent across the state and are targeted to detect cannabis, ecstasy (MDMA), cocaine, and methamphetamines. If drugs are detected in your saliva, you will be required to provide further samples in blood and/or urine.

What are the Penalties?

The below table sets out the various penalties for this type of offending:

*second or subsequent offence

The Court may consider sentencing you to one or more of the following:

• Section 10 bond;
• Fine;
• Conditional Release Order (‘CRO’);
• Community Correction Order (‘CCO’);
• Intensive Correction Order (‘ICO’); or
• Full-time imprisonment.
  
  

Section 10 Bond

There are three types of section 10 penalties, including:

• Section 10(1)(a);
• Section 10(1)(c); or
• Section 10A.
  
  

A section 10(1)(a) bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal and/or driving record, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.

A section 10(1)(c) bond involves a finding of guilt, a conviction is recorded, and you can be referred to an intervention program.

A section 10A penalty involves a finding of guilt and a conviction is recorded, but no further action is taken.

CRO

A CRO is a sentence which allows you to remain in the community, but you are supervised by Community Corrections. The Court can decide whether or not to record a conviction. The maximum term of the CRO is two years and may involve conditions such as to be not consume alcohol for the period of the bond. If you breach a CRO, you will be brought before the Magistrate that sentenced you and potentially be re-sentenced to a more serious penalty.

CCO

A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction. If you breach a CCO, you will be brought before the Magistrate that sentenced you and potentially be re-sentenced to a more serious penalty.

ICO

If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as community service, curfew, or rehabilitation. If you breach an ICO, the Parole Board will determine whether to order you serve the remainder of the period in full-time custody. This is because an ICO is a sentence of imprisonment ordered to be served in the community.

Imprisonment

This offence carries maximum penalty of 18 months or 2 years imprisonment, depending on the factual circumstances of the offending. However, full-time imprisonment is only reserved for the most serious matters.

What are the Defences?

The following are the legal defences for driving under the influence of drugs in NSW:

• Necessity: The accused was driving under the influence to avoid a greater harm, such as to seek emergency medical assistance or to escape from a dangerous situation. For example, a driver who is under the influence of drugs but drives to the hospital to get help for a sick child may be able to argue that they were acting in necessity.
• Duress: The accused was forced to drive under the influence by the threat of immediate and serious harm to themselves or another person. For example, a driver who is threatened with violence by a passenger if they do not drive may be able to argue that they were acting under duress.
• Automatism: The accused was not in control of their actions at the time of the offence, such as if they were suffering from a medical condition or were under the influence of a drug that was administered without their consent. For example, a driver who has a sudden hypoglycemic attack and loses consciousness while driving may be able to argue that they were acting in automatism.
• Honest and reasonable mistake: The accused believed that they were not under the influence of drugs or alcohol, or that they were below the legal limit, when they were in fact impaired. For example, a driver who takes a prescribed medication and does not realize that it will impair their ability to drive may be able to argue that they made an honest and reasonable mistake.
  
  

It is important to note that the burden of proof lies with the Prosecution to prove that the accused is guilty of the offence beyond a reasonable doubt. If the accused raises a defence that casts a reasonable doubt on their guilt, then the accused must be acquitted.

Why Jackson John?

Our team of expert traffic lawyers will ensure you receive robust representation to achieve the best result possible. Contact us today to have your free 15-minutes initial consultation.