Clarity Law

Specialist Traffic Law Firm Queensland
Sunday, 26 February 2023 12:51

Drug driving loopholes in Queensland

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Drug driving in Queensland is becoming one of the more common traffic offences that can bring people to court.

People charged are obviously interested to know if there is a way to get out of the charge i.e. are there loopholes to drug driving charges in Queensland? Can I beat a drug driving charge?  How to get off a drug driving charge? Is there a defence to a drug driving charge?

In this article we will use the term “loophole” but it’s important to note they aren’t real loopholes, they are for the most part legal requirements that must be completed by the police for a successful prosecution of a drug driving charge.


The basics

There are two possible drug driving charges in Queensland either;

  • driving whilst a relevant drug is in the system; or
  • driving under the influence of a drug (“DUI”)

In essence driving with a relevant drug in the system is similar to low range drink driving while driving under the influence of a drug is similar to high range drink driving.

In Queensland we have mandatory periods of disqualification which means even a first offence of drug driving will lead to the loss of the drivers licence.


How are the drug tests carried out?

Drug driving tests are conducted in a similar way to RBTs. The tests are mostly done through an oral saliva test, however they can be conducted through a blood drug test or a urine drug test if you are unable to provide a saliva sample.

To test for drug driving Queensland police will ask for a saliva sample for the purpose of testing for:

  1. THC – active ingredient in cannabis;
  2. Methylamphetamine – also known as speed and ice; and
  3. MDMA – the active ingredient in ecstasy.


Drug Driving Loophole number 1 – The 3 hour rule

The police must conduct the salvia or blood test within 3 hours of you driving and it must be conducted in accordance with the law. 

Lets take an example of someone alleged to have been seen driving recklessly thorough a carpark.  They are seen at 6:51pm and the police are notified at 6:55pm.  The police obtain CCTV footage from a local business and they make out the rego number.  They then cross check who owns that vehicle and go to the home of the owner.  All of that has taken some time so they don’t arrive at the home until 10:10pm and request the owner take a drug test.  The test was taken more than 3 hours after the police became aware of the alleged driving and therefore the court has the power to declare that the blood test cannot be used in court.


Drug Driving Loophole number 2 – Reasonable grounds

Queensland law states that the police may require a blood or salvia test if they find a person driving a vehicle, attempting to drive a vehicle or being in charge of a vehicle. If the police don’t find a person actually in or around the vehicle then they can only obtain a test if they suspect on reasonable grounds that a person drove or attempted to drive a vehicle in the last 3 hours.

As to what reasonable grounds are, it isn’t defined in the act.  The test would be objective i.e. what would a “reasonable” police officer in the situation consider to be information that would lead them to consider that someone has attempted or actually drove.


Drug Loophole number 3 – I didn’t know

Under our general criminal laws there is a defence of mistake.  That means for example a person has been given a substance by a person, they are told it is a weight loss drug, they take it and in fact it had an illicit drugs mixed in.  This might normally be a grounds to raise a defence.

Unfortunately in Queensland the mistake of fact does not apply to drug or drink driving charges.  If you take drugs, even without your knowledge it is not a defence if the drugs show up in the drug test results.


Drug Loophole number 4 - I was in the vehicle but not driving

You can be charged with drug driving being in charge of a vehicle if you had control of the motor vehicle for example if you were in the driver’s seat and had the keys near you even if you were not driving or had no intention of driving.  Often this occurs when people are in the car waiting to be picked up, in the car wanting to find something or just sleeping.

It does not matter that the car was not on a road.  You can be charged with drug driving even if the car was on private property such as a car park or driveway.

If however you were not in the front compartment and took steps that clearly indicate you had no intention of driving and the vehicle was parked safely then this may be a defence.


Drug Loophole number 5 – The test is wrong

People often contact us and tell us they took no illicit drugs, only a legal substance like cough medicine or similar.  The problem is that the drug test is presumed to be correct by law.

If you find yourself in that situation keep the substance you took and urgently get a drug test taken so that there might be evidence that could be used to try and negotiate with the police prosecutor to try and have them withdraw the charge.


Drug Loophole number 6 – Prescription Medications

Some drivers may be prescribed medications that can impair their driving, such as benzodiazepines or opioids. While it is legal to use these medications with a valid prescription, it is illegal to drive while under the influence of them. However, it can be difficult to prove that a driver was impaired by prescription medication, as the effects can vary depending on the individual and the dosage.

As a salvia test will not pick up a prescribed medication (except cannabis) the only way you can get a drug driving charge is if the police alleged you were under the influence based on what they saw or in legal terms your indica.

The types of indicia that might result in a charge of driving under the influence of a drug include;

  • The manner of driving
  • A person physical condition and appearance
  • Behaviour and attitude
  • A person’s eyes and breathing
  • Speech
  • Coordination
  • Memory
  • Health
  • Conduct at watch house or with police

It would be up to the police to prove to the court that the indica shows that you were under the influence of a drug.


Drug Loophole number 7 - legally prescribed cannabis

At the present time Queensland law does not provide an exemption for driving with prescribed cannabis in your system.  Therefore regrettably even if you had a valid prescription if any cannabis is found in your system you will be charged and the fact it was prescribed is not a defence recognised by the law.  The law around this will hopefully change.


Drug Loophole number 8 – The police stuffed up the test

The police must follow quite a strict set of procedures when they either administer a test or get a nurse of doctor to take a blood sample.

It’s beyond an article like this to go into depth if the police did the test incorrectly and even if they did something wrong whether this would invalidate the charge.  You would need an experienced traffic lawyer to properly go through the facts and evidence.


The reality

The reality is very few drug driving cases go to a trial and even fewer are successfully found not guilty.

Often where a loophole exists the matter is resolved through negotiations and case conferencing between the prosecutor and the defendants lawyer.  This is often the cheapest, quickest and best way to resolve a drug charge where a loophole may apply.


None of these “loopholes” apply to me, what can I do?

In that case you need to try and minimise the penalty as much as possible.  In Queensland all people charged with drug driving will lose their licence for a period of time. 

In some circumstances you can apply for a work licence to minimise the impact of the disqualification.

Getting legal advice from an experienced traffic lawyer is the best way to reduce the impact of the penalty.  We have a full article on drug driving that will help explain the consequences of pleading guilty and what you can do to reduce the disqualification period.


Need more information?

We have a range of articles on drug driving on our blog.  Some of the most recent have included:


How do I get more information or engage you to act for me? 

If you want to engage us or just need further information or advice then you can either;

  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Call us on 1300 952 255 seven days a week, 7am to 7pm
  3. Click here to select a time for us to call you back
  4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about drug driving. You won’t be chased or hounded to engage us.  Remember its critical you get advice before going to court, a drug driving charge no matter the reading will have an impact on you, your family and your employment or business.  

Last modified on Friday, 05 May 2023 15:48
Steven Brough

Steven Brough is the Founder of Clarity Law.  He is one of the most experienced traffic lawyers in Queensland having appeared in court many thousands of time throughout Queensland since 2010.  He has authored over 100 articles about every aspect of traffic law in Queensland.

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