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Drug Driving Lawyer Melbourne (Victoria)

Common Drug Driving Offences

Christopher Sheen a Melbourne traffic offence solicitor, specialising in drug driving and driving under the influence charges.

Driving with a Prescribed Illicit Drug Present

Driving with a prescribed illicit drug present in oral fluid or blood is an offence specified under sections 4949(1)(bb), 49(1)(h), and 49(1)(i) of the Road Safety Act 1986.


i.    Section 49(1)(bb) relates to matters where a driver is accused of driving or being in charge of a motor vehicle while having any detectable amounts of a prescribed illicit drug present. 

This offence is laid on the basis that at the time of driving you had the drugs in your system at the time of driving.  There is a presumption pursuant to section 48(1)(ac) that the drugs were in your system if you were tested within 3 hours of driving / being in charge and drugs were found to be present at that time.  This presumption can be rebutted with cogent evidence to the contrary.

ii.    Section S49(1)(h) relates to matters where a prescribed drug is present in an oral sample within 3 hours of driving or operating a motor vehicle.

This offence is laid on the basis that you had drugs in your system within 3 hours of driving / being in charge of a motor vehicle and the presence of such drugs was not due solely to the consumption of such drugs after driving/ being in charge. There is a presumption created by section 48(1B) that the drugs found within 3 hours of driving were not due solely to consumption post driving/ being in charge.  This presumption can be rebutted by evidence on the balance of probabilities. This evidence to the contrary must be sworn/affirmed evidence by you and it must be corroborated by another.

Offences pursuant to section 49(1)(bb) and 49(1)(h) are often laid together with the prosecution withdrawing the charge laid under section 49(1)(bb) on a plea to the charge laid under section 49(1)(h)

iii.    Section S49(1)(i) relates to matters where a prescribed drug is present in a blood sample within 3 hours of driving or operating a motor vehicle.  

This offence is very similar to the offence laid under section 49(1)(h) except that the drug is detected in blood rather than oral fluid.  This occurs where you consent to a blood sample or more often when you are in hospital following a collision and a doctor takes a sample from you.  It is noteworthy that the sample does not require a condition that it be tested within 12 months which exists in drink driving matters pursuant to section 49(1)(g).

The prescribed concentration of drugs

Offences specified under sections 49(1)(bb), 49(1)(h), and 49(1)(i) of the Road Safety Act 1986 refer to exceeding the prescribed concentration of drugs.  That concentration is defined in section 3(1) to be any concentration of a prescribed illicit drug.

 

Prescribed Illicit Drugs Include:

 

  • THC (the active component in cannabis)

  • Methamphetamine (commonly referred to as ice or speed)

  • MDMA (commonly referred to as ecstasy)

Penalties for Driving with a Prescribed Illicit Drug Present

Penalties for driving with a prescribed illicit drug in your system above the prescribed concentration carry maximum penalties of;

 

First offence; maximum fine of 12 penalty units

Second offence; maximum fine of 60 penalty units

Subsequent offences; maximum fine of 120 penalty units

 

If you are found guilty of driving with a prescribed illicit drug in your system above the prescribed concentration, the court will issue mandatory licence disqualification periods of;

 

First offence; minimum mandatory period of 6 months licence disqualification

Subsequent offences; minimum mandatory period of 12 months licence disqualification

Driving under the influence (DUI)

This charge is found under section 49(1)(a) of the Road Safety Act 1986.

 

This charge may be laid together with other drink driving charges.  Police will commonly withdraw those other drink driving charges on a plea to DUI given it is the more serious charge.


To be successful the prosecution must prove the following in relation to this charge:

 

  1. That you are correctly identified as the offender;

  2. You were driving / in charge of a motor vehicle;

  3. You had consumed alcohol or other drugs; and

  4. Because of that alcohol or drug consumption you were incapable of having proper control of a motor vehicle.

 

Police will often rely on their own observations of your driving or observations from witnesses.  

 

They may rely on a breath test reading and expert evidence as to the ability to have proper control at that particular reading.

 

Police will also rely on their observations of whether you were slurring your words, uncoordinated and other observations even if they did not observe your driving, for example if they attend the scene of a collision or observe you trying to start a motor vehicle.  


Incapable of having proper control does not require police to prove that you were totally drunk.  “The standard of control is the standard of an ordinary reasonably competent driver.” (R v Ciantar (2006) 16 VR 26)


Penalties for DUI


•    For a first offence this carries a fine up to 25 penalty units or prison for up to 3 months
•    For a second offence a fine up to 120 penalty units or up to 12 months prison.
•    For any other subsequent offence, a fine up to 180 penalty units or up to 18 month prison.

 

Note that the value of a penalty unit is updated each year but is valued at $197.59 for the period from 1 July 2024 to 30 June 2025


Mandatory Loss of Licence


DUI offences carry minimum mandatory licence disqualification periods of 2 years for a first offence and 4 years for a subsequent offence. While the court can increase the period of disqualification it can not reduce this period even if you have compelling and exceptional circumstances.

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Drive whilst impaired  by a Drug

This offence is laid under section 49(1)(ba) Road Safety Act 1986


To be successful the prosecution must prove the following in relation to this charge:

  1. That you are correctly identified as the offender

  2. You were driving / in charge of a motor vehicle

  3. One or more drugs were present in your body at the time of driving / being in charge.

  4. You were impaired by a drug.

Penalties for driving whilst impaired a drug

  • For a first offence a fine of up to 12 penalty units

  • For a second offence a fine of up to 120 penalty units or imprisonment for up to 12 months

  • For a subsequent offence, a fine up to 180 penalty units or imprisonment up to 18 months.


Mandatory Loss of Licence

Driving while impaired carries a minimum mandatory licence loss of 12 months for a first offence and 2 years for a subsequent offence.

Advantage of pleading to driving whilst impaired pursuant to section 49(1)(ba) over DUI under 49(1)(a)

If you have no prior history of offending there is a clear advantage in that the court is not able to imprison you for an offence pursuant to section 49(1)(ba).  The mandatory licence loss is half of that contained in a DUI charge.  A successful negotiation with police in respect to this charge can have a profound impact on your sentence and time off the road. 


Defence in relation to prescription drugs


There is a defence if you are charged on the basis of being impaired by a prescription drug so long as it is taken in accordance with the prescription and that you did not know and could not reasonably have known the drugs would impair your driving.

REFUSAL OFFENCES

Refusing Oral Fluid Drug Testing

Under section S49(1)(eb) of the Road Safety Act 1986 it is an offence for drivers to refuse oral fluid drug testing. 

Refusing oral fluid testing under section S49(1)(eb) typically relates to matters where a you are stopped for testing however, it is important to note that pursuant section 55D(1), a police officer may request oral fluid testing when;

i.    You are found driving /in control of a motor vehicle; or 
ii.    You are driving a motor vehicle and required to stop and remain stopped at a preliminary breath testing station; or
iii.    Police reasonably believe that you were driving / in charge of a motor vehicle which was involved in an accident within the last 3 hours; 
iv.    Police reasonably believe that you were an occupant in a motor vehicle involved in an accident within the last three hours, in circumstances where they have not established who was driving

​​

Penalties for Refusing Oral Fluid Drug Testing​

 

First offence; maximum fine of 12 penalty units

Second offence; maximum fine of 60 penalty units

Subsequent offences; a fine of 120 penalty units

 

Drivers found guilty of refusing oral drug testing under section S49(1)(eb) of the Road Safety Act 1986 face mandatory licence disqualification periods of;

 

First offence; 2-year licence disqualification

Subsequent offences; 4-year licence disqualification

Refuse to undergo Assessment Test for Drug Impairment

Under section S49(1)(ca) of the Road Safety Act 1986, it is an offence for to refuse to undergo an assessment for drug impairment.

To be successful the prosecution must demonstrate:​

  1. You were the driver:

  2. You were:

    • Found driving /in control of a motor vehicle; or 

    • Driving a motor vehicle and required to stop and remain stopped at a preliminary breath testing station; or

    • Police reasonably believe that you were driving / in charge of a motor vehicle which was involved in an accident within the last 3 hours; 

    • Police reasonably believe that you were an occupant in a motor vehicle involved in an accident within the last three hours, in circumstances where they have not established who was driving; or

    • Required to undergo a preliminary breath test pursuant to section 53; or

    • Required to provide a sample of breath pursuant to section 55; or

    • Required to provide a blood sample in accordance with section 55(9A); and 

  3. You were required to undergo an assessment for drug impairment in accordance with section 55A; and

  4. The requirement was made within 3 hours of your driving / being in charge/ being an occupant.

  5. You refused to comply with the requirement or any other requirement pursuant to section 55A(1)

Refuse Blood / Urine Test

Under section S49(1)(ea) of the Road Safety Act 1986, it is an offence to refuse blood or urine sample in circumstances as described below.

The prosecution must demonstrate:

  1. You were the driver:

  2. You were:

    • found driving /in control of a motor vehicle; or

    • driving a motor vehicle and required to stop and remain stopped at a preliminary breath testing station; or

    • Police reasonably believe that you were driving / in charge of a motor vehicle which was involved in an accident within the last 3 hours;

    • Police reasonably believe that you were an occupant in a motor vehicle involved in an accident within the last three hours, in circumstances where they have not established who was driving; or

    • Required to undergo a preliminary breath test pursuant to section 53; or

    • Required to provide a sample of breath pursuant to section 55; or

    • Required to provide a blood sample in accordance with section 55(9A); and

  3. You were required to undergo an assessment for drug impairment in accordance with section 55A; and

  4. The assessment, in the opinion of the officer, indicated you may be impaired by a drug(s); and

  5. The police officer required you to:

    • Allow a medical practitioner or approved health professional as nominated by the officer to take a sample of your blood for analysis; and/or

    • Provide a registered medical practitioner / approved health professional as nominated by the officer with a sample of urine for analysis; and

  6. For the purpose of providing the sample you were required to:

    • Accompany the officer to a place where the sample was to be taken; or

    • Remain at the place where the sample was to be taken; or

    • Remain at the place for 3 hours following the driving/ being in charge; or

    • Allow a sample of blood or urine to be taken for analysis; and

  7. You refused to remain or allow the sample to be taken as required

Penalties for Refusing Blood or Urine Drug Testing

Drivers found guilty of refusal offences pursuant to section S49(1)(ca) or S49(1)(ea) of the Road Safety Act 1986 face penalties of:

 

First offence; maximum fine of 12 penalty units

Second offence; maximum fine of 120 penalty units or imprisonment for up to 12 months

Subsequent offences; a fine of 180 penalty units or up to 18 months imprisonment

 

Drivers found guilty of refusing oral drug testing under section S49(1)(ca) or (ea) of the Road Safety Act 1986 face mandatory licence disqualification periods of;

 

First offence; 2-year licence disqualification

Subsequent offences; 4-year licence disqualification

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How it Works

Step 1

Get in touch using the contact form on this page to book your initial consultation.

Step 2

During your initial consultation, we will discuss your matter and provide answers to your questions

Step 3

Based on the circumstances of your case, I will provide a roadmap for working together.

Frequently Asked Questions

What drugs do the police roadside test for in Victoria?

In Victoria, roadside (oral) drug testing can detect the following illicit drugs;

THC (the active component in cannabis)
Methamphetamine (commonly referred to as ice or speed)
MDMA (commonly referred to as ecstasy)

Roadside drug testing in Victoria is not intended to detect the presence of prescription or over-the-counter drugs.  
 

How long can drugs be detected in the system?

There is no standard answer to this question. Just like alcohol, individual circumstances such as gender, weight, age, and other factors will influence how long illicit drugs can be detected in the system.

 

Variables including the quantity of the drug that is taken, and the known or unknown chemical composition of the drug will also have a bearing on how long it remains present and detectable.

The police did not explain the consequences of refusing to undergo the oral fluid test. Is that a defence?

No, although routinely police do advise of the consequences of a refusal they are not required by law to do so: DPP v Vaa (2004) 42 MCR 511.

There was no device for the oral fluid present when the request to undergo the test was made.  Is this a defence?

No, there is no requirement that the device for testing be present at the time of the request, there is no requirement that a person authorised to carry out the test be present at the time and no requirement that a medical practitioner/ approved health practitioner be present at the time a blood test was requested.  If you refuse you can not rely on these factors as a defence.

Is the penalty higher if I test positive to both alcohol and drugs?

Yes, section 49(1)(j) of the Road Safety Act contains a specific offence relating to the combination of alcohol and drugs.  For a first offence you can be fined up to 30 penalty units.  A second offence and subsequent offences can result in heavy fines and jail time.  Schedule 1AB contains a table of how long your licence based on your blood alcohol content.  The periods of disqualification are much higher than they would be without the combination of alcohol and drugs.

Possible Defences

There are various defences available and all will depend on the specific case. Some defences include:

  • Time limit issues

  • Disputing identity

  • The refusal was not conscious and voluntary

  • Poorly drafted charges in matters where the statute of limitations have expired.  Note that this will be limited according to DPP v Kypri [2011] VSCA 257.

  • Defence of substantial character in relation to refusing to furnish a sample of breath.  Note that this does not apply to charges of refusing to accompany police to a place for testing or refusing to remain at such a place.

  • The requirement to accompany police for an oral fluid test is not objectively reasonable.  For example asking you to walk kilometres away would not be reasonable in accordance with DPP v Mastwyk.

  • The requirement to remain does not contain sufficient information in accordance with DPP v Rukandin [2011] VSCA 276.

  • The request to accompany does not properly state the purpose of the requirement and circumstances justifying it: Mitchell v DPP (2004) 8 VR 192.

  • Police do not have the power to request you to undertake the test relevant to the charge for example requesting an oral fluid test in circumstances where you are not found driving and no collision has occurred.

  • Even if no defence is available, negotiations with police in relation to which charges are to proceed can have a substantial impact on the length of any licence loss and penalty.

Book Your Consultation

Get in touch today

To provide the most efficient and cost-effective traffic law service, consultations are done through Zoom or Microsoft teams. Meetings may be arranged on site at Owen Dixon East Chambers Melbourne for an additional fee.

Owen Dixon East Chambers Melbourne VIC 3000

0413 94 1990

Mon - Fri: 9:00 am – 5:00 pm

Christopher Sheen 

Barrister and Australian Lawyer

Victoria

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