Drug Driving Offences in Victoria

Updated: Apr 2

Charged with Drug Driving and want to learn more?


Background


Our current drug driving laws have their genesis in a parliamentary inquiry undertaken by the Victorian Government in 1996 into the effects of drugs (other than alcohol) on road safety in Victoria. The Chairman’s preface from that enquiry noted:


“Victoria's relative success in reducing the involvement of alcohol in road crashes has now highlighted the involvement of drugs in crashes. The Committee was disturbed by the results of coronial inquiries which reveal that drugs are present in about one quarter of Victorian driver fatalities, a level comparable to that of alcohol. The extent to which drug presence contributed to such crashes is not clear and similar studies are needed of injured drivers.

Scientific evidence shows many drugs can affect driver performance and such drugs are present in what appear to be an abnormal proportion of Victorian driver fatalities. Estimates of the magnitude of the problem range as high as one eighth of the road toll. Significant countermeasures are needed”.


By 2000, the Road Safety Act 1986 (Vic) had been amended to insert the offence of Driving a Motor Vehicle Drug Impaired (Section 49(1)(ba) and also made it an offence to Refuse a drug impairment assessment (Section 49(1)(ca).

By 2003, a further drug driving offence was added to provisions of Section 49, namely: Driving or overseeing a motor vehicle whilst exceeding the prescribed concentration of drugs in his or her oral fluid (Section 49(1)(bb).

Since 2003, the penalties pertaining to drug driving offences have become harsher, and the underlying policy is of course road safety.


All drug driving offences are prosecuted under Section 49 of the Road Safety Act 1986 (Vic). And the various drug driving offences are for drug driving (to the point of being impaired, or simply having a concentration of drug in oral fluid or blood) or refusal offences (or refusing to participate in a drug assessment by failing to provide an oral fluid (saliva) or blood sample).


What types of drugs are tested?


The drug testing equipment used by police under the Act detects cannabis, methamphetamine (ice) and ecstasy (MDMA).

Any concentration of these substances will result in a person being charged with a drug driving offence (Sections 49(1)(bb), 49(1)(h) of the Act).

However, for the purposes of Drug Impaired Driving (Section 49(1)(ba) of the Act, a “drug” is any drug other than alcohol and includes prescription and over-the-counter medication.


Drug Driving Assessment


Proof that a person was drug impaired, or had exceeded the prescribed concentration of drugs will depend upon compliance with the processes outlined under Section 55 of the Act. The circumstances which enable the police to undertake a drug assessment include:

- Where a person is found driving or in charge of a motor vehicle

- Where a driver is required to undergo a preliminary breath test

- Where on reasonable grounds, the police suspect a driver as involved in a motor vehicle accident in the preceding 3 hours

- Require a driver to provide a sample of breath for a breath test.

The police will require a motorist to undergo a series of physical coordination tasks which are video recorded. Such tasks require a person to walk several heel-to-toe steps, or balance on one leg, then the other. A motorist is also asked a series of questions pertaining to their driving, whether they have consumed any illicit substances, medical history, including medication prescribed for an illness.


What Are the Consequences of a Negative Drug Assessment?


The police will charge the person with the relevant drug driving offence. A first offence of Exceed PCD may result in the issue of a Traffic Infringement Notices, but in other cases, depending upon the circumstances (seriousness and whether a person has prior offences for drug driving), the matter will be referred to Court by way of a Charge and Summons notice.


The penalties for Drug Driving Offences


Offence Penalty


First drug-driving offence Fine (max 3 penalty units)

(and received a Traffic Infringement Notice) License suspension for 6 months

Complete Drug Driver Program



First drug-driving offence

(Charge and Summons to attend Court) Fine (max 12 penalty units)

License cancellation 6 months

Complete Drug Driver Program

Maintain a zero-license condition for 3 yrs

Second drug-driving offence Fine (max 60 penalty units)

License cancellelation 12 months

Intensive Drug Driver Beh. Change Program

Maintain a zero-license condition for 3 years


.


Third (or more) drug-driving offences Fine (max 120 penalty units)

License cancellation 12 months

Intensive Drug Driver Beh. Change Program

Maintain a zero-license condition for 3 years



The penalties for Driving Drug Impaired (Section 49(1)(ba))


Offence Penalty


First offence Fine (12 penalty units)

License cancellation 12 months

Second offence Fine (120 penalty units) or maximum 12 months

imprisonment

License cancellation 24 months

Third (or more) offences Fine (180 penalty units) or max 18 months

imprisonment

License cancellation 24 months


(note this information is current as at February 2020 to confirm penalties and disqualification periods always refer to the legislation)


Defences


Defending a drug-driving charge are typically based upon technical grounds as to whether the police have complied with all the rules and regulations pertaining to the drug assessment. Failure to comply with all the pre-conditions to a lawful drug assessment may result in the prosecution being unable to tender the results of a drug assessment, which will usually result in the prosecution case against an accused failing. The availability of a defence will depend upon the facts of a case; however, some defences may include:


· Factual dispute as to whether a person was either driving or ‘in control’ of the motor vehicle at the relevant time.

· Whether the drug assessment was undertaken within 3 hours of driving

· Factual dispute as to whether alleged impairment was due to a medical condition or disability and not consumption of a drug.


Conviction? With or Without?


The Court has a discretion as to whether to record a conviction for a drug driving offence. The likelihood of a Court recording a conviction will increase where the circumstances of the offending are serious (drug impaired driving, or where an accident occurs as a result), or where a person has a prior offence for drug driving. Regardless of whether a conviction is recorded, all findings of guilt will be revealed on the LEAP database (police background check).


How do you get your license back?


A person convicted of a drug driving offence must complete the Behaviour Change Program, or an Intensive Drink Drug Driver Program depending on the circumstances.

For cases that must proceed to Court a License Eligibility Order must be obtained. A LEO may be granted by a Magistrate if they are satisfied that it is appropriate having regard to whether the pre-requisites have been completed, including the outcome of a police interview.


Get advice early if you’re charged with a drug driving offence


Even if your case seems cut and dried, it is always a good idea to get advice from an experienced criminal lawyer. Early preparation is some important to understanding your options. Call our office on (03) 9668 7600 for a free case assessment.


To read more about a recent case involving drug driving refer to our case study.


Useful sites:


Magistrates Court of Victoria - Getting Your License Back


Written by Shaun Pascoe, Director, Pascoe Criminal Law.

Case Study Drug Driving Offence


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Melbourne, Vic 3000

Ph: (03) 9668 7600

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