Defence of honest and reasonable mistake of fact

trevmaxington
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Defence of honest and reasonable mistake of fact

Postby trevmaxington » Tue Apr 26, 2016 10:44 pm

In light of the media attention this NSW Magistrate's decisions have been getting (http://www.abc.net.au/news/2016-02-02/m ... ed/7133628), just wondering what people's thoughts are on the availability of the defence in Victoria.

Hardy
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Re: Defence of honest and reasonable mistake of fact

Postby Hardy » Wed Apr 27, 2016 12:22 am

It does not exist in Victoria for drink driving or drug driving offences, which are absolute liability offences.

allde
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Re: Defence of honest and reasonable mistake of fact

Postby allde » Wed Apr 27, 2016 6:31 am

Isn't it still illegal to have a positive reading while you are driving, if that's the case who cares if it's 3 hrs or 3 weeks.

Hardy
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Re: Defence of honest and reasonable mistake of fact

Postby Hardy » Wed Apr 27, 2016 7:20 am

Victoria's parliament has decided that any driver who has any trace of cannabis in their body must lose their licence for at least 3 months. This is regardless whether or not they pose any real risk other road users. Parliament could have left it up to the courts to decide if the person deserves to lose their licence but the politicians determined that they know more about this stuff than Magistrates do.

freddie
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Re: Defence of honest and reasonable mistake of fact

Postby freddie » Thu Apr 28, 2016 2:47 am

The same pollies have also decided to make cannabis legal for medicinal purposes

http://www.heraldsun.com.au/lifestyle/h ... 14553e984a

So you will lose your license for 3 months if any trace of your legally prescribed cannabis is found in your system while driving.

Gravy
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Re: Defence of honest and reasonable mistake of fact

Postby Gravy » Thu Apr 28, 2016 11:49 am

This is not surprising Freddie. There are lots of legally prescribed drugs that you should never, ever drive on. Opioid based analgesics such as oxycodone, for example. It's commonly prescribed to patients for post-operative pain management. Any sleep promoting drug is another classic example.

Being restricted from driving whilst affected by prescription medicine is neither news nor unreasonable.

Hardy
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Re: Defence of honest and reasonable mistake of fact

Postby Hardy » Thu Apr 28, 2016 6:17 pm

And alcohol does not even need a prescription!

freddie
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Re: Defence of honest and reasonable mistake of fact

Postby freddie » Thu Apr 28, 2016 6:20 pm

Restricted for how long though?

If i had a couple of beers followed by 8 hours sleep I'm good to drive in the morning. How long will people who use their legally prescribed cannabis have to wait before they can drive?

allde
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Re: Defence of honest and reasonable mistake of fact

Postby allde » Thu Apr 28, 2016 7:47 pm

Well they would have to wait until it fully left their system, any trace you will be done.

One site says for the occasional user 4 days
frequent user 10 days
Stoner 67 days

Gravy
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Re: Defence of honest and reasonable mistake of fact

Postby Gravy » Fri Apr 29, 2016 3:45 pm

I think that, in practical terms, if a person is so sick that they're prescribed medicinal cannabis then they're probably too sick to be driving anyway. It's not as though medicinal cannabis is an alternative to paracetamol or ibuprofen - my understanding is that is pretty much a quality-of-life-for-the-terminally-ill thing. Also (apparently) effective for treating certain types of seizures, but it's not as though those patients are fit to drive anyway.

I just don't see how drug driving laws would be a problem for either drivers or legally prescribed users.

Slattery
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Re: Defence of honest and reasonable mistake of fact

Postby Slattery » Sat May 28, 2016 9:41 pm

An appeal is expected.

allde
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Re: Defence of honest and reasonable mistake of fact

Postby allde » Mon May 30, 2016 6:41 am

freddie wrote:Restricted for how long though?

If i had a couple of beers followed by 8 hours sleep I'm good to drive in the morning. How long will people who use their legally prescribed cannabis have to wait before they can drive?


That would depend on if your a professional driver or not.
Any reading over 0.00 BAC will see you busted.

Hardy
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Re: Defence of honest and reasonable mistake of fact

Postby Hardy » Mon May 30, 2016 8:05 am

In NSW an honest and reasonable belief in a state of facts can be a good defence to drug driving and drink driving.
DPP v. Bone

Not so in Victoria:
Skase v. Holmes, 11 October 1995 BC 9508019.

stroppy
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Re: Defence of honest and reasonable mistake of fact

Postby stroppy » Fri Jul 21, 2017 11:19 pm

Gravy wrote:This is not surprising Freddie. There are lots of legally prescribed drugs that you should never, ever drive on. Opioid based analgesics such as oxycodone, for example. It's commonly prescribed to patients for post-operative pain management. Any sleep promoting drug is another classic example.

Being restricted from driving whilst affected by prescription medicine is neither news nor unreasonable.


The problem is that the warning stickers placed on medications bottles and boxes often state the following:

"THIS MEDICATION MAY INDUCE DROWSINESS. IF AFFECTED DO NOT DRIVE A MOTOR VEHICLE" (or words to that effect). The operative word is "MAY" and the judgement is left to the patient to decide.

Hardy...could this be used in a court case...for example- "I judged I was okay to drive, even though the sign on the box of antihistamines said they MAY induce drowsiness. I did not feel drowsy and decided to drive."

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Re: Defence of honest and reasonable mistake of fact

Postby Hardy » Sat Jul 22, 2017 12:13 am

Depends what you are charged with. There are at least 6 different drug driving offences in Victoria. Only 3 of them refer to impairment. It is far more likely you will be charged with an offence that does not refer to impairment. But if you are talking about prescription medication, then although s.49(1)(a) and 49(1)(ba) make no distinction between legal and illegal drugs at least under s.49.1.ba there is a limited defence for people who have been advised by a medical practitioner that it is ok to take the drug and drive. However it is very unusual to find anyone charged under 49.1.ba these days because it is an historical anomaly that was superseded when oral fluid tests were introduced.


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