For Drug driving, the testing methods and penalties involved can sometimes be difficult to understand. Josh McKenzie and James McLaughlin are your experienced criminal lawyers at McKenzie McLaughlin Law Pty Ltd. As former prosecutors, they have appeared in hundreds of matters involving those who drive with drugs present in their oral fluid or their system.
The offence of “presence of certain drugs (other than alcohol) in oral fluid, blood or urine” is committed by a person who drives a motor vehicle on a public road while there is any prescribed illicit drug present in the person’s oral fluid, blood or urine.
The maximum penalty for this charge depends on whether a person is a first offender or a repeat offender. In respect of sentencing, the starting point would likely be for a criminal conviction to be recorded, a fine to be imposed and the offender’s licence disqualified for six months.
Josh and James will offer non-judgemental legal representation and are passionate about telling your side of the story. If you are charged with a driving offence, make the intelligent choice and give Josh and James a call for outstanding legal representation.
For a quick look at the penalties available for these offences, take a look at the table below.
How does mobile drug testing work?
Much the same as a random breath test or ‘RBT’, the police will direct you to stop by the roadside. It is then usually the case that you will be identified by police by way of production of your licence. Police will then ask you to scrape a device over your tongue (Drugwipe 6S Saliva Detection Device). This device looks like a stick and is used to detect drugs in your saliva. A preliminary analysis of the device by police trained to use the device and its testing systems will take approximately 8 minutes. The device will identify drugs such as ecstasy, cannabis, and methamphetamine.
After a short time, Police will approach you and advise you if your mobile drug test (MDT) was positive. If your Mobile Drug Test returned a positive result, Police will then take you to a roadside testing van, bus, or to a police station. Essentially, you are under arrest at this time.
Once back at the destination chosen by police, you will provide another saliva sample, which will be used for more rigorous and reliable testing. The saliva sample is to be tested by a machine called the Drager Drug Test 5000. A Drager Drug Test 5000 utilises an optoelectronic system to precisely measure substances and substance levels. This whole process can take around 20 minutes to half an hour to complete. Remember, if this result is positive, police then have the power to ban you from driving. If Police elect to ban you from driving, they will ban you for a period of up to 24 hours.
Drivers should know that Police then send all positive saliva samples to a laboratory for analysis. Once this analysis is complete, and should the positive result be confirmed, Police will be in contact to charge you with the offence of driving with the presence of an illegal drug. It is important to know that this charge is for merely having a drug present, not driving under the influence of drugs.
So what drugs does mobile drug testing detect?
Traditionally, Mobile Drug Tests detect drivers who have recently used cannabis (delta-9-tetrahydrocannabinol), speed (methylamphetamine), and ecstasy (3,4-methylenedioxymethamphetamine). In addition to this, the drug cocaine is now tested as part of the Police’s powers to conduct mobile drug tests.
At McKenzie McLoughlin Law, our two criminal defence lawyers are always up to date in respect to police investigation and prosecution methods.
Other drugs are not currently screened due to difficulties in establishing a so-called ‘significant level’. The significant level is typically below the level at which the substance becomes effective from a user point of view but is set at a minimum point where anything registering below that level could be reasonably dismissed as a false positive in court.
Josh and James will provide you with devoted legal representation. Their tailored legal advice is sure to get you the best result at court.
What about the offence of driving with an illicit drug or drugs which is present in my blood, oral fluid or urine?
A person cannot drive with a prescribed illicit drug in their system and will be committing an offence if they do. If you are charged with such an offence, contact your local criminal defence lawyers at McKenzie McLaughlin Law.
Most driving offences are legislated for in the Road Transport Act 2013. The offence of ‘Presence of certain drugs (other than alcohol) in oral fluid, blood or urine is set out in section 111 of the Road Transport Act 2013 which states:
A person must not, while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug:
- drive a motor vehicle, or
- occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
- if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.
Am I guilty of an offence of using or attempting to use a vehicle under the influence of drugs?
As former prosecutors in the Courts of New South Wales, our principals Josh McKenzie and James McLoughlin have an explicit understanding of the laws in relation to driving whilst intoxicated or under the influence.
The offence of ‘use or attempted use of a vehicle under the influence of alcohol or any other drug’ is committed by a person who drives a motor vehicle, attempts to use a motor vehicle, or occupies a seat in or on a motor vehicle next to a learner driver who is driving a vehicle on a public road whilst under the influence of a drug or combination of drugs.
It is not in uncommon for Police to prove this offence by way of provision of an expert statement. That statement generally flows from a factual matrix involving a negative breath test and subsequent blood and urine analysis at a laboratory. Police can also prove this offence based upon their observations of you following a road stop, where there has been a negative breath test.
What are the penalties?
Following the recording of a criminal conviction, the maximum penalty for a first-time offender is imprisonment for 9 months, a fine of 20 penalty units and automatic licence disqualification for 12 months. The maximum penalty for a repeat offender following the recording of a second criminal conviction within 5 years is imprisonment for 12 months, a fine of 30 penalty units and automatic licence disqualification for three years.