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 three 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
under the Influence - s.49(1)(a)
This is an old
offence and is 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 unlikely
that any police member 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
disqualification for a first offence,
4 years for a second 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 definition 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
perscription 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
s.49(1)(bb). 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 the same manner that booze
buses currently conduct preliminary
breath tests, except a saliva swab is
taken and analysed on the spot rather
than a sample of breath. A blood
analysis 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.
Penalties
for driving with
Cannabis or Amphetamine
|
Traffic
Infringement notice
penalty
|
Approximately
a $500 fine and 3 demerit
points
|
Court
imposed penalty (first
offence)
|
Up
to approx $1,400 fine
Prior to 12/12/2010: Up to
six months licence loss.
From
12/12/2010: at least 3
months licence loss.
|
Second
offence
|
Up
to approx $7,000 fine
Prior to 12/12/2010: Up to
12 months licence loss.
From 12/12/2010: at least
6 months licence loss.
|
Third
or subsequent offence |
Up
to approx $14,000 fine
Prior
to 12/12/2010: Up to
12 months licence
loss.
From 12/12/2010: at
least 6 months licence
loss.
|
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
If your licence is
lost for drug driving, you will need
to ask a Magistrate for permission to
be relicenced. It is impossible to be
required to have an interlock
installed upon the making of an
application to be relicenced following
licence loss for drug driving.
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
Arrive
Alive
Drug Drive site
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