Clarity Law

Specialist Traffic Law Firm Queensland
Monday, 17 July 2023 14:37

Second drug driving charge

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Drug driving charge continues to increase in Queensland largely due to more police testing the introduction of testing for cocaine.  If this is your second or more drug driving offence then you will face increase penalties and in some cases the inability to apply for a work licence.

In this blog post we will look at the penalties for a second drug driving charge and whether any defence exists.


What drugs are tested for?

Driving while a ‘relevant’ drug is present in your blood or saliva is an offence under the traffic legislation. For present purposes we will consider a ‘relevant drug’ as either cannabis, MDMA or methylamphetamine (Ice) and cocaine as these are the only illicit drugs the police saliva tests currently detect.


How in a drug driving offence detected?

In the vast majority of cases, police will direct a person to pull over and then give the person a ‘stick’ to swab over their tongue/inside of their mouth. The result is usually immediate. This is called a saliva test. Less commonly, police may require a blood test. This will generally only happen if a person is at a hospital (usually in relation to a crash), and police ask a nurse or doctor to take a sample of blood.

Once a drug is detected by the preliminary test, it is then sent to a government-run lab for thorough analysis. So long as the analysis result comes back contained within the correct form/certificate, this is considered to be conclusive evidence that a drug was present in the sample provided, and is therefore conclusive proof there was a drug present in the driver’s saliva or blood.


How much can be in your system before it is illegal?

The drug driving laws only require a detectable amount of a relevant drug to be in a person’s saliva. That is to say, the analysis results do not, unlike drink driving analysis results, give a figure of just how much of the drug was in the person’s body. This means, perversely, that a person can have the smallest trace of the drug in their system, and if this is detected, it will be sufficient to establish a charge of drug driving.

So, any detectable amount is illegal, and we do not know at what point a quantity of drug transforms from undetectable to detectable. Anecdotally, we have been told it can be days, and in extreme cases, even a week after a person has taken a drug, that it can be detected by the tests.


But I didn’t feel affected!

Having had the opportunity to observe self-represented defendants in court, a common claim/complaint is the person was not under the influence or had had the drug some days before the test. Again, unlike drink driving offences, there is no legal requirement for the person to be affected by the drug in any way.

In an indirect way, the drug driving traffic laws do what the drug possession laws don’t: they penalise drug consumption as opposed to drug possession. Given the sizeable number of people in Queensland who consume cannabis (and the other drugs to a lesser extent), enforcing these offences is low-hanging fruit for police.


What if I have a medical prescription for cannabis?

Unfortunately, it is still an offence to drive while cannabis is present in your saliva, even if it is prescription cannabis. The linked article explains in greater detail.


What are the penalties for a second offence of drug driving

The law mandates minimum disqualifications for these offences.

For the first offence, for a person on an open licence, the minimum disqualification is 1 month however for a second offence in 5 years a open licence holder faces a minimum disqualification of 3 months and a maximum of 12 months.  For two prior offences within 5 years, it is 6 months.

For a learner, P plates, or unlicenced driver, the minimum penalty starts at 3 months.

Aside from disqualifications, the other penalty to expect is a fine of $700 or more for second drug driving offence. There is no set rule on the amount of the fine; some magistrates can impose fines as high as $600.

Be aware, too, that if you accumulate two or more drug driving offences before you have them dealt with in court, the disqualifications will stack, that is, run one after the other. So, if you got two drug driving offences on an open licence a couple of days apart, and were then dealt with by a court, your minimum disqualification would be 2 months: 1 month for each offence.


Possible Defences

Honest and reasonable mistake

Unfortunately, this defence is specifically precluded by section 79(12) of the Transport Operations (Road Use Management) Act 1995. That means even if there is a drug in your system and you don’t know how it got there, or it got there in some way that you didn’t intend (such as second hand smoke), you will still be liable for the offence.



It is a defence if you can prove that you drove, and it was an emergency. Generally, the situation needs to be immediate, for example – another person in the car needs urgent medical attention. There is no limit to the situations in which the defence can apply, but it needs to be an emergency so immediate that driving while a drug was present appeared to be the only option. Obviously, feeling extremely hungry and needing to do a Macca’s run is not going to cut it!



In a very rare case, it may be possible someone else convinced police he or she was you and police charged someone according to your details and believing it was you.


There was not a drug present

This is another difficult defence to run, because once police have a certificate confirming a relevant drug is in your saliva, the only way to disprove that is to get a different expert to say the analysis is wrong.


You were in the car, or near the car, but were not going to drive

Police can charge you with being ‘in charge’ of a motor vehicle while a drug was present, that is, you weren’t driving, but you had the potential to drive.

This is different from being charged with actually driving.

The law gives you defence in such a situation, which is:

Court not to convict if satisfied of particular matters
If on the hearing of a complaint of an offence against subsection (drug driving) in respect of a motor vehicle the court is satisfied beyond reasonable doubt by evidence on oath that at the material time—

(a)the defendant—

(i)by occupying a compartment of the motor vehicle in respect of which the offence is charged other than the compartment containing the driving seat of that motor vehicle; or

(ii)not being in that motor vehicle, by some action;

had manifested an intention of refraining from driving that motor vehicle while any of the following circumstances relevant to a conviction on the complaint applied—


v)there was a relevant drug present in the defendant’s blood or saliva; and

(b)the defendant—

(i)was not under the influence of liquor or a drug to such an extent; or

as to be incapable of understanding what the defendant was doing or as to be incapable of forming the intention referred to in paragraph (a); and

(c)the motor vehicle in respect of which the offence is charged was parked in such a way as not to constitute a source of danger to other persons or other traffic; and

(d)the defendant had not previously been convicted of an offence under subsection (drink driving and drug driving offences) within a period of 1 year before the date in respect of which the defendant is charged; 

The court must not convict the defendant of the offence charged.


If you are charged with being ‘in charge’ of a motor vehicle while a drug was present, let us know and we can examine if you have this possible defence available.


Will I need an interlock?

No, not for drug driving offences.


What can I do to prepare for my court date?

We, naturally, recommend you contact us and get legal advice. Getting some character references helps, and if you have history for similar offending, participating in the Queensland Traffic Offenders Program can also help. You would want to make sure you do not drive by yourself to court as, unlike NSW, there is no possibility of getting an outcome that will not disqualify your licence.


Can I get a work licence?

This is a possibility for this offence. There are a couple of pre-conditions, however:

  1. You cannot have been disqualified or suspended within 5 years before the offence (except SPER suspension),
  2. You must have had an open licence when the offence was committed,
  3. You must genuinely need your licence for work, and no other reason.

You can find more detail on the subject of work licences here.

If your previous drug driving charge was within 5 years then you cannot apply for a work licence.


How can Clarity Law help me?

While many people decide to go to court without a solicitor, this is a roll of the dice.

Clarity Law can help you in the following ways:

  1. We know the magistrates well. Fair or not, the magistrate and how he or she is handled can make a big difference to the outcome,
  2. We are experts in traffic law. We may be able to identify issues you would not have considered and bend them in your favour in court. We are also much more likely to provide a comprehensive service compared to a law firm that only does traffic law occasionally,
  3. We are experienced advocates. To most people, public speaking is an alien and feared event. For us, however, this is something we do multiple times per week. We know how to structure your case and deliver it in court for the most advantageous outcome.
  4. You will get out of court early. With a solicitor by your side, you will be able to be one of the first people to have his case dealt with, rather than one of the last.
  5. You are our focus. We help people just like you all the time. We appreciate your money and time are important to you, and we make every effort to ensure you properly understand your rights, and that you are treated with curtsey and respect.


Last modified on Tuesday, 18 July 2023 14:44
Jacob Pruden

Jacob is a senior traffic lawyer at clarity law | This email address is being protected from spambots. You need JavaScript enabled to view it.

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