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Drug Driving

Drug driving falls into two tiers under Queensland law, both of which carry mandatory licence disqualification periods and even mandatory jail sentences in some cases.  If you are guilty of drug driving and your driver’s licence is disqualified you might be eligible to apply for permission to drive for work purposes (called a ‘work licence’) but there are strict rules that apply to such an application.

If you, or a family member, have been charged with drug driving you should contact us for a confidential, cost and obligation free, discussion about the situation and how Townes & Associates can help.

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    Drug Driving

    Section 79

    Transport Operations (Road Use Management) Act 1995

    Drug driving is divided into two classes under Queensland law: driving with a relevant drug present in your blood or saliva and driving under the influence of a drug.  At its least serious the charge carries a maximum fine of 14 penalty units and/or up to 3 months imprisonment while at its most serious, a charge of driving under the influence carries a maximum fine of 28 penalty units and/or up to 18 months imprisonment.  If a person is guilty of driving under the influence more than 3 times within a 5 year period then the penalty imposed on them must include jail.

    In all cases a court must disqualify a person who is guilty of drug driving from holding or obtaining a Queensland driver’s licence for a period of time.  For an offence of driving with a relevant drug in their system, a person can make an application for a work licence at the time their licence is disqualified if they are eligible.  You can learn more about work licence applications, and your potential eligibility for one, at our dedicated work licences page

    The minimum and maximum disqualification periods for each offence, and the potential entitlement to apply for a work licence, are set out in the table below:

    Offence

    Mandatory minimum disqualification

    Maximum possible disqualification

    May apply for a work licence

    Driving with relevant drug present

    1 month

    6 months

    Yes

    Driving under the influence

    6 months

    Absolute disqualification

    No

    A charge laid under s.79(2AA) of the Transport Operations (Road Use Management) Act 1995, driving with a relevant drug in your system is the least serious drug driving offence under Queensland law and it is committed when somebody drives, attempts to put in motion or is in charge of a motor vehicle, tram train or vessel while they have a relevant drug present in their blood or saliva.  The maximum penalty for driving with a relevant drug in your system in Queensland is a fine of 14 penalty units and/or up to 3 months imprisonment with a criminal conviction.  A person who is convicted of driving with a relevant drug in their system must be disqualified from holding or obtaining a Queensland driver’s licence for a minimum of 1 month and they might be eligible to apply for a work licence at that time.

    Driving with a relevant drug in your system can be committed without any specific knowledge, or intent, by a driver and it does not connote any specific level of intoxication (or any intoxication at all). Being mistaken as to the presence, or likely presence, of  drug in one’s blood or saliva is not a defence to a charge of drivint with a relevant drug in your system.

    Depending on the circumstances, the penalties for driving with a relevant drug in your system in Queensland can be severe (always including a licence disqualification and often a criminal record, even for first offenders).  

    If you would like to know more about driving with a relevant drug in your system in Queensland use the tabs below to assist you.

    Driving with a relevant drug in system is often committed in the following ways:

    The week after the party

    A person has been smoking cannabis, or amphetamine, at a party of a Friday night and, knowing that they might still be feeling the effects throughout the weekend they actively avoid driving until it’s time to go to work on Monday.  On the way to work the person is stopped by police and a saliva swab is taken revealing traces of the drug that had been consumed the week before.  Assuming they are a first offender this person might expect to receive a fine with a conviction and a licence disqualification of between 1 and 3 months.

    In charge

    A person, knowing that they’re too intoxicated to drive home from a party, gets into their car and reclines the driver’s seat to go to sleep rather than attempt to drive home.  Before going to sleep they turn on the ignition (to run the aircon if it’s summer or the heater in the winter time).  They are awoken by Police, knocking on their window, who administer a saliva swab and charge the person with drug driving on the basis that they are ‘in charge’ of their motor vehicle. Assuming they are a first offender this person might expect to receive a fine with a conviction and a licence disqualification of between 1 and 3 months.

    Please note these examples and penalties are illustrations only.  Every case is different and if you have been charged with an offence you should contact Townes & Associates for specific advice on your situation.

    Drug driving charges can be difficult to defend but it is not impossible.  A person cannot rely on a defence of ‘mistake’ (as they can in relation to most other charges) but they can, in certain circumstances, cast doubt upon the accuracy of the saliva sample which is taken (specifically, when the drug returned as being present is amphetamine and the person is prescribed ADHD medication).  

    If you are considering pleading not guilty to a drug driving charge you should contact Townes & Associates to discuss your case and prospects of a successful defence.

    Driving with a relevant drug in your system will be heard in the Magistrates Court

    A client can enhance their prospects of a favourable outcome when facing a charge of driving with a relevant drug in system by completing a traffic offender program prior to sentence and providing a certificate or report to you upon completion (for tendering in court).

    Many Magistrates will insist that a drug driving offence is a ‘traffic conviction’ and that, therefore, their discretion under s.12 of the Penalties and Sentences Act 1992 is less fettered than had it been a ‘criminal offence’.  While due respect and deference must be accorded a Magistrate, consideration might be given to putting forward an argument, based on a combination of sections 2 and 3 of the Queensland Criminal Code that there is no distinction at law between ‘traffic’ and ‘criminal’ offences (even if there is a distinction made by Police record keepers) and that therefore the discretion under s.12 should not be applied differently to drug driving cases.

    Expert evidence is likely to be required if a defence to a charge of driving with methamphetamine present in system (on the basis of a false positive being returned because of the use of Ritalin or Aderall) is to succeed.  Care must be taken to ensure that the defence to be raised is not a ‘mistake of fact’ (which is impermissible under s.79(12) of the Transport Operations (Road Use Management) Act 1995).

    A charge laid under s.79(1) of the Transport Operations (Road Use Management) Act 1995, driving under the influence of a drug (‘DUI’) is the most serious drink driving offence under Queensland law and it is committed when somebody drives, attempts to put in motion or is in charge of a motor vehicle, tram train or vessel while they are under the influence of a drug.  The maximum penalty for DUI in Queensland is a fine of 28 penalty units and/or up to 9 months imprisonment with a criminal conviction.  A person who is convicted of DUI must be disqualified from holding or obtaining a Queensland driver’s licence for a minimum of 6 months and they are not entitled to apply for a work licence at that time.

    The maximum penalties for repeat offenders (meaning anyone who has been convicted of drink or drug driving within the last 5 years) escalate quickly, with 3rd time offenders facing a mandatory jail sentence.

    DUI can be committed without any specific knowledge, or intent, by a driver to be under the influence and being mistaken as to ones level of intoxication is not a defence to a charge of DUI.

    Depending on the circumstances, the penalties for DUI in Queensland can be severe (always including a licence disqualification and often a criminal record and sometimes jail, even for first offenders).  

    If you would like to know more about driving under the influence of a drug in Queensland use the tabs below to assist you.

    Driving under the influence of a drug is often committed in the following ways:

    An unfortunate accident

    A person has been consuming cannabis, amphetamine and/or MDMA (3-4methylenedioxymethamphetamine) with friends and they decide to drive the person’s car somewhere, perhaps to get food or visit other friends.  En route, the person loses control of the car and crashes through the front fence of a residential home attracting the arrival of police and an ambulance.  In this case a blood test is likely to be administered at the hospital.  Assuming they are a first offender, and nobody was hit or killed, this person might expect to receive a community service order and/or a probation order with a conviction and a licence disqualification of between 6 and 18 months (depending on the severity of the property damage caused).  If a passenger or bystander is injured or killed a much more serious charge of dangerous operation of a motor vehicle, causing grievous bodily harm or death, will likely be laid (and a jail sentence will almost inevitably result). 

    In charge

    A person passes out in the driver’s seat of their car after a big weekend only to be woken to police a short time later, concerned for their welfare.  Upon speaking with the person the police form the view that they are under the influence of a drug because of the way they were speaking and some very recent indicia of drug use (for example fresh needle marks).  The police proceed to charge the person with driving under the influence of a drug on the basis that they are ‘in charge’ of their motor vehicle.  Assuming they are a first offender this person might expect to receive a fine with a conviction and a licence disqualification of between 6 and 12 months.

    Please note these examples and penalties are illustrations only.  Every case is different and if you have been charged with an offence you should contact Townes & Associates for specific advice on your situation.\

    Drug driving charges can be difficult to defend but it is not impossible.  A person cannot rely on a defence of ‘mistake’ (as they can in relation to most other charges) but they can, in certain circumstances, cast doubt upon the accuracy of the blood samples which are taken (specifically, when the drug returned as being present is amphetamine and the person is prescribed ADHD medication).  

    If you are considering pleading not guilty to a drug driving charge you should contact Townes & Associates to discuss your case and prospects of a successful defence.

    Driving under the influence of a drug will be heard in the Magistrates Court

    A client can enhance their prospects of a favourable outcome when facing a charge of driving under the influence of a drug by completing a traffic offender program prior to sentence and providing a certificate or report to you upon completion (for tendering in court).

    Many Magistrates will insist that a drug driving offence is a ‘traffic conviction’ and that, therefore, their discretion under s.12 of the Penalties and Sentences Act 1992 is less fettered than had it been a ‘criminal offence’.  While due respect and deference must be accorded a Magistrate, consideration might be given to putting forward an argument, based on a combination of sections 2 and 3 of the Queensland Criminal Code that there is no distinction at law between ‘traffic’ and ‘criminal’ offences (even if there is a distinction made by Police record keepers) and that therefore the discretion under s.12 should not be applied differently to drug driving cases.

    Expert evidence is likely to be required if a defence to a charge of driving with methamphetamine present in system (on the basis of a false positive being returned because of the use of Ritalin or Aderall) is to succeed.  Care must be taken to ensure that the defence to be raised is not a ‘mistake of fact’ (which is impermissible under s.79(12) of the Transport Operations (Road Use Management) Act 1995).  The defence will be particularly problematic in cases where the indicia of intoxication are inconsistent with the prescribed use of the ADHD medication but it is not impossible in contexts where symptoms of severe ADHD can present similarly to intoxication by amphetamine.

    Facing charges?

    If you or a loved one has been charged with a drug driving offence, in particular if you think you’ll need to apply for a work licence, you should contact Townes & Associates for a confidential, cost and obligation free discussion about the situation and how we can help.  Use the form below to get in touch, leave your best contact telephone number and we will give you call back at no cost to you.

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