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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
doctore 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
for this offence are 12 months minimum
licence loss for a first offence under
any of the drink/drug driving laws, 2
years licence loss for a second offence
and at least 2 years licence loss for
refusing to comply with any requirement
to undergo the test or provide a
sample.
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 as booze
buses currently conduct preliminary
breath test, 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 possible
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 to obtain the
evidence required to prove the
offence.
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Penalties
for driving with Cannabis or
Amphetamine
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Traffic
Infringement notice
penalty
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$307
fine and 3 demerit
points
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Court
imposed penalty (first
offence)
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Up
to $614 fine
Up to three months licence
cancellation
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Second
and subsequent
offences
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Up
to $1227 fine
Up to six months licence
cancellation
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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,
obtaining a sample.
These are very
new and technical offences and defences
are likely to be found and tested over
the next couple of 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.
Links:
Vicroads
Arrive
Alive
Drug Drive site
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