Driving with Prescribed Illicit Drugs Present

The police conduct three tests of your saliva:

• The first is the tongue swab roadside;
• Then a saliva sample is taken and tested at the booze bus or the police station; and
• That sample is also sent off to a laboratory to be thoroughly tested.

If you have a positive result for either of the first two tests then the police will likely suspend you from driving for 48 hours and tell you that if the lab results also come back positive then you will receive either an Infringement Notice or a Court Attendance Notice (CAN) in the post.

The wait for the lab results is about 6 weeks.

The Infringement Notice gives you a set fine amount that you can pay to finalise your matter. If you pay the fine the following will happen:

• the offence will be put on your traffic record (but it is not counted as a criminal record)
• the RMS will send you a letter suspending your licence for 3 months

There are a number of defences that might be relevant to your situation.

If you are not guilty, then you can elect to fight the case in court instead of paying the Infringement Notice.

There are risks to court electing (criminal conviction and harsher penalty). We recommend that you get good legal advice before doing so.

Please contact us to discuss how these might apply to you.

If you have a CAN for an offence of drug driving then instead of simply paying a fine, you will have to go to court on the date listed on your Notice.

The Court will decide what (if any) penalty to impose.

Don’t worry that if you plead guilty the magistrate won’t hear your side of the story.

During the sentencing proceedings the magistrate will give your lawyer the chance to explain what happened, what type of person you are and the impact that the case and any penalty will have on you. The magistrate will consider all of those things when deciding what penalty to impose.

With the right preparation you can reduce the penalties that the magistrate would otherwise impose.

Read on for more about what to expect at your sentence hearing.

Drive with Prescribed Illicit Drug Present – First offence

Drive with Prescribed Illicit Drug Present  – Second or subsequent offence in 5 years

In deciding a penalty, the magistrate will weigh up the unique factors in each case. They will consider when the driver last consumed the drug, their manner of driving, their need for a licence and what they are doing to ensure that they don’t reoffend.

In some cases, the magistrate will agree not to record a conviction or impose any punishment. This is known as a section 10, or conditional release order without conviction.

Where the magistrate decides to convict a person, the usual penalty is a fine and licence disqualification.

Drug driving matters are regularly dismissed under section 10.

A section 10 is an order where the magistrate finds you guilty of the offence, but releases you without a criminal conviction or further punishment. Any operating police licence suspension is also lifted.

If the magistrate dismisses your matter under section 10 you may be required to enter into a conditional release order. This is a good behaviour bond, or promise to the Court, that you will not commit any other offences for a period of time.

For a personalised assessment of your chances of receiving a section 10 contact us.

If the Court convicts you for drug driving then you will get a criminal conviction and criminal record.

There are two ways to avoid this:

• Be found not guilty.
• Be found guilty, but without a conviction being recorded (section 10).

You will not get a criminal record if you pay an Infringement Notice for Drive with Prescribed Illicit Substance Present.

If the Court convicts you for drug driving then you will get a criminal conviction and criminal record.

There are two ways to avoid this:

• Be found not guilty.
• Be found guilty, but without a conviction being recorded (section 10).

You will not get a criminal record if you pay an Infringement Notice for Drive with Prescribed Illicit Substance Present.