How to Get Off a Drug Driving Charge in the ACT

Have you been pulled over for suspected drug driving and are now facing legal charges? It's a situation that can feel overwhelming, but understanding your options and seeking appropriate legal guidance can make all the difference.



In this blog on how to get off a drug driving charge, we'll delve into the specifics of drug driving charges in the Australian Capital Territory (ACT) and explore the steps you can take to defend yourself effectively. By understanding the nuances of the charge and discussing potential defence strategies, we aim to provide you with the knowledge and confidence you need to navigate this challenging situation. 

What is a drug driving offence?

A drug driving offence is a type of offence that involves driving under the influence of drugs. It's similar to drink driving but pertains specifically to the influence of illicit drugs or certain prescription drugs that can impair an individual's driving ability. Unlike drink driving, where a legal limit exists for alcohol, any presence of drugs in your system while driving constitutes an offence.

In the ACT, the police can conduct a roadside drug test to detect the presence of drugs in a driver's system. If a driver tests positive or shows signs of impairment, they can be charged with a drug driving offence. Typically, this offence comprises two elements:

1. the individual was under the influence of alcohol or drugs (presence)
2. to the extent that they were unable to maintain proper control of the motor vehicle. This offence involves both legal and illegal drugs, such as methadone, morphine, oxycodone, fentanyl, and heroin.

Drug Driving Laws & Procedures

In the ACT, drug driving laws target substances that impair driving, promoting road safety by discouraging driving under the influence.

List of Prescribed Illicit Drugs

The following drugs are considered as prescribed illicit drugs:

• Delta-9-tetrahydrocannabinol (THC or cannabis)
• Methamphetamine (ice)
• 3,4-Methyl​enedioxy​methamphetamine (MDMA)
• Cocaine
• Opioids (such as heroin, oxycodone, and morphine)
• Benzodiazepines (e.g., diazepam, alprazolam)
• Amphetamines
• Synthetic cannabinoids
• Hallucinogens (e.g., LSD, psilocybin)

Drug Driving Test

A drug test is conducted to determine if there is a presence of drugs in your system. Roadside drug test comprises three steps that must be completed before a driver can be charged with an offence.

The initial two steps are conducted by police officers at the roadside. To start, an oral test is conducted, followed promptly by a 'preliminary oral fluid analysis' using a device called a Drug Detection System.



If the individual cannot provide a saliva test, a blood test might be used. Before a driver is charged, a third 'confirmative' positive laboratory test is required, which is carried out by the ACT Government Analytical Laboratory (ACTGAL).

Penalties for a Drug Driving Offence in the ACT

Driving under the influence of drugs is a serious offence that can result to severe penalties and consequences if caught. Depending on factors such as the type of drug detected, the level of impairment, and whether it's a first-time offence or a repeat offence, penalties for drug driving offences in the ACT may include fines, driver's licence suspension or disqualification, imprisonment, criminal record, and mandatory participation in an alcohol and drug awareness program.

Driving with a Prescribed Drug

Drug possession while driving may not directly constitute to drug driving. However, it can still result in serious legal consequences and penalties under drug-related laws.

First Offender

For a first offence, an individual caught driving with a prescribed drug will be subject to:

• maximum court fine of 10 penalty units
• 6-month minimum disqualification period up to a maximum disqualification period of 3 years

Repeat Offender

For a repeat offender, the penalties for a drug driving offence are:

• maximum court fine of 25 penalty units and/or 6 months imprisonment
• minimum disqualification period of 12 months up to a maximum disqualification period of 5 years

Driving Under the Influence of Drugs

If drug driving is proven, an individual can face fines, license disqualification, and even imprisonment, depending on the severity of the offence.

First Offender

If it's a first offence, a person caught driving with a prescribed drug will be subject to a:

• maximum court fine of 30 penalty units and/or 6 months imprisonment
• 6-month minimum disqualification period up to a maximum disqualification period of 3 years

Repeat Offender

For a second or subsequent offence, the penalties that the repeat offender can face are:

• maximum court fine of 30 penalty units and/or 6 months imprisonment
• minimum disqualification period of 12 months up to a maximum disqualification period of 5 years

Alcohol and Drug Awareness Course

In the ACT, all drivers who are convicted or found guilty of drug driving must undergo an alcohol and drug awareness course before the end of the disqualification period and before being eligible for a restricted or probationary license.

Steps to Take When Charged with Drug Driving

When charged with drug driving, there are certain steps you can take to protect your rights and navigate the legal process effectively. Here's are some ways:

Non-Driving Presence

In certain instances of drug driving, an innocent party might find themselves wrongly accused. This can happen for various reasons, such as administrative mistakes by the prosecution or the perpetrator using someone else's identification. However, if it can be proven that you were not the one driving the motor vehicle, it serves as a complete defence against the charge.

Insufficient Evidence

Should the prosecution fall short in proving every aspect of the offence, like demonstrating the accused's presence behind the wheel or in control of the motor vehicle, presenting credible drug test results, or adhering to correct police protocols, the case could potentially be dismissed.

Honest and Reasonable Mistake

This legal defence, commonly known as the 'innocent ingestion defence,' may be applied if the accused can prove that he is not aware of driving under drug influence, typically by demonstrating unintentional ingestion through factors such as contaminated substances or unknowingly consuming medication with hidden psychoactive effects.

Inadmissibility of Evidence

If the police administered the drug testing on the property of the accused, like on their driveway, or if the test took place two hours or more after they operated a vehicle, the evidence might be considered inadmissible in court due to potential procedural issues regarding the timing and location of the test.

Duress

If the accused can demonstrate that they were coerced into committing the offence, a valid defence may be established. Coercion, in this context, refers to situations where the accused was compelled to act against their will due to threats, intimidation, or force imposed upon them by another party.

Consumed Illicit Drug After Driving

According to the law, charges and penalties are only applicable if an individual is caught driving under the influence of prescribed drugs. Therefore, if you consumed the prescribed drug before undergoing a saliva test or blood test but after driving your vehicle, you have not committed drug driving.

Faulty Testing Apparatus

A drug driving charge is only given if the individual is found to have consumed a prescribed drug, as detected in oral fluid or blood samples. This means that you can potentially challenge the accusation by proving that there are inaccuracies in the test results of the samples.

Necessity

If the accused can demonstrate that their actions were essential, for instance, in situations involving imminent danger, this could serve as a legitimate defence. Seeking guidance from a seasoned criminal lawyer is crucial as they can pinpoint potential defences for drug driving charges and engage in negotiations with law enforcement to potentially have the case dismissed.

Seek Legal Advice

If you have been charged with a drug driving offence, it's important to seek legal advice from drug driving lawyers without delay. They can assess your situation comprehensively, advise you on your rights, and develop a strategic defence tailored to your case.

Takeaway

Driving under the influence of drugs is a serious offence that can endanger both the driver and other people on the road. Significantly, engaging in this behaviour can result in grave legal consequences, including fines, license suspension, and even imprisonment.

If you are charged with drug driving, turning to leading criminal lawyers in town, like Andrew Byrnes Law Group, should be your immediate course of action to make sure you receive expert legal representation and assistance in getting the best possible outcome for your case. Get in touch with us today to book a free initial meeting with one of our lawyers.