Drug driving offences are prosecuted under section 49 of the Road Safety Act (1986) Vic. In this article, we provide an overview of several drug driving offences and provide a discussion on the elements, penalties, and defences.
Table of Contents
Background to Drug Driving Offences
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).
Types of Drugs Tested for Drug Driving Offences
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 and Drug Driving Offences
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 was 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 that 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, and medication prescribed for an illness.
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 Notice, 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.
Penalties for Exceed Prescribed Concentration of Drug - Section 49(1)(bb),(h)
First drug-driving offence
Fine (max 3 penalty units) and received a Traffic Infringement Notice
License suspension for 6 months
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 cancellation 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
Penalties for Driving Drug Impaired (Section 49(1)(ba))
First offence
Fine (12 penalty units)
License cancellation 12 months
Need to complete an Intensive Drink and Drug Drive Behaviour Change Program
Have a zero BAC condition for 3 years
Second offence
Fine (120 penalty units) or max 12 months imprisonment
License cancellation 24 months
Need to complete an Intensive Drink and Drug Drive Behaviour Change Program
Have a zero BAC condition for 3 years
Third (or more) offences
Fine (180 penalty units) or max 18 months imprisonment
License cancellation for at least 24 months
Need to complete an Intensive Drink and Drug Drive Behaviour Change Program
Have a zero BAC condition for 3 years
Please note this information is current as at July 2023, to confirm penalties and disqualification periods always refer to the legislation. You can also visit VicRoads for information about drug driving penalties.
Sentencing Outcomes for Drug-Driving Offences in the Magistrates' Court
Imprisonment is a measure of last resort, and so unless an offender has a particularly bad history for drug driving offending, or the offence before the Court is so serious or is consolidated with other traffic offences, the common sentencing outcomes for drug driving offences are:
Fine
Imprisonment
Defences to Drug-Driving Offences
Defending a drug-driving charge is 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 defence will turn upon the particular facts of a case however, some defences may involve:
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 the consumption of a drug.
Conviction? With or Without?
The Court has 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).
Read our article for a further discussion on the factors relevant to whether a conviction will be recorded for an offence.
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.
Conclusion
Get advice early if you’re charged with a drug driving offence
If you've received a charge and summons to attend Court to answer a drug driving charge, contact us to organise a case assessment where we can discuss the circumstances of your case and explore all options.