In the same way that you can be given a random breath test for alcohol, you can also be pulled over for a random roadside saliva test to test for the presence of any relevant drugs in your system.
If you are caught driving with the presence of a relevant drug in your system, you will be required to go to court and your licence will be disqualified. This guide seeks to give you an overview of the types of drug driving charges and the penalties the court may impose. This guide is in relation to Queensland law only.
What is a relevant drug?
In Queensland a relevant drug is one of 3 drugs:
Types of drug driving
In Queensland we have 2 types of driving charges relating to the presence of drugs in your system, these are;
Driving with a relevant drug present
In Queensland we have a zero tolerance policy for driving with a relevant drug present in your system. This means that any trace of a relevant drug in your system will result in you being charged.
As the name of the charge suggest the police are not required to prove that there was a particular concentration of the relevant drug in your system at the time or driving, merely that the drug was present.
If the results of a drug driving test comes back positive it is irrelevant whether your driving was affected by having illicit drugs in your system. This means that for example, if you consume marijuana a couple of weeks before being tested you will still be charged with drug driving if the results are positive (marijuana can stay in your system for up to 40 days).
However, saliva tests are designed only to react to the active ingredient of a drug. Therefore the period in which drugs can be detected varies depending on quality and quantity of the drug that has been ingested, the period of time since taking the drug and the
Driving under the influence of a drug
Driving under the influence of a drug is the more serious drug driving offence. This requires police to show that at the time of driving you were intoxicated by a drug and that it was measurably affecting your ability to operate the vehicle.
If a police officer suspects your ability to drive has been affected by a drug you may be required to provide a specimen of blood for analysis.
You can be charged with driving under the influence of any type of drug not just the relevant drugs listed above.
If you are charged with driving under the influence of a drug we would expect the QP9 or police report to indicate that you were showing indicia of being affected by the drug including;
Whilst it is common for the police to seek a blood or saliva test to determine the presence of a drug it is legal for them to charge you purely based on indicia.
What happens after you’ve been caught?
If you are caught driving with a relevant drug present in your system your licence will be immediately suspended for 24 hours. This means you are not able to drive for that period and if you do you risk being charged with driving while suspended.
If you are charged with driving under the influence of a drug your licence will be immediately suspended until your matter is finalised in court.
In certain circumstances, it is possible to apply for a special licence which will allow you to drive before your matter is finalised in court. This is called a section 79E order and is only available to people charged with drug driving who hold an open licence. You are not able to apply for a section 79E if you hold a provisional or learner’s permit or you already have a charge for drink/drug driving still before the courts.
Are you eligible for a work licence or other permit to driving during your disqualification?
You may be eligible for a work licence if you have been charged with drug driving and meet certain criteria. To find out more information about whether you are eligible we recommend you read our essential guide to obtaining a work licence:
Going to court
Generally most court matters follow this procedure;
What penalties can the court impose?
The table below sets out the disqualification ranges and maximum fine the court can impose for a first offence.
Driving with a relevant drug present
1 – 9 months
Over the general alcohol limit (BAC over 0.05 but under 0.10)
Minimum 6 months
What can I do help reduce my penalty?
We also strongly suggest you attend some form of driving course before your court date. We recommend the Queensland Traffic Offenders Program (“QTOP”). This course can be done online or in person. All the details including how to enrol are on their website at www.qtop.com.au .
The program is designed to increase the understanding of participants of their social commitments in general and traffic laws in particular. When your matter is finalised in court a magistrate may take into account any changes of attitude exhibited by you while participating in the program.
How to get your licence back after your disqualification
It is critical to note that upon completion of your licence suspension period you cannot simply start driving again. You must attend Queensland Transport and have your licence re-issued.
If you fail to attend Queensland transport and do so, or if you are caught driving during the suspension period you will be charged with disqualified driving which carries a mandatory licence disqualification of two years.
You will be issued with a probationary licence, which you must hold for at least 1 year.
How to get in Contact with us
If you want to engage us or just need further information or no obligation advice then you can either;
In Queensland police are increasingly undertaking drug driving tests in conjunction with normal drink driving RBT units. Police officers who are able to conduct the drug testing need to be specially trained in the use of saliva testing equipment and testing procedures. The number of Police that are now qualified to conduct the drug tests has increased dramatically in the last few years as well as the addition of 13 specially built drug testing vehicle to Queensland roads. There is going to be an increasing amount of drug driving charges.
For example the amount of drug driving tests for the last 3 years include;
2014 - 21,000 drivers were drug tested in Queensland
2015 – 33,000 drivers were drug tested in Queensland
2016 – It has been estimated that over 50,000 drivers will be tested in Queensland
The roadside drug driving tests are carried out by taking a swab of a driver’s salvia. The tests are designed to pick up the following illegal drugs;
1. THC – the active component in cannabis
2. Methylamphetamine – also known as speed, ice or crystal meth
3. MDMA – also known as speed
A person caught with these drugs in their system will normally be charged with driving with a relevant drug in the system. When you are charged with this offence your licence will usually be suspended for a 24 hour period. Depending on your circumstances and traffic history it is possible to apply for a work licence if you are charged with driving with a drug in your system.
If the driver appears to be under the influence at the time they are driving or is believed to be affected by a drug to such an extent that they are endangering the public they will be charged with the higher of the two drug charges being, driving under the influence of a drug. If you are charged with this offence your licence will be suspended immediately up until your matter is dealt with by the Court. If you receive a driving whilst under the influence of drugs charge you cannot apply for a work licence. Further, if you are believed to be under the influence it is not uncommon for the Police to then search your vehicle for drugs or drug paraphernalia.
It is also possible to be charged with driving under the influence of drugs if you are driving a vehicle with legal drugs in their system, that being legally prescribed medication. The decision is made at the police’s discretion as to whether they believe the drugs have affected the person to such a degree that their driving was impaired.
If the police suspect a person has been impaired they may be required to give a sample of their blood for further testing. At the time a blood test is taken you are allowed to request that the Police provide you with a sample of your blood so you can have it tested independently.
A key component to proving the charge in court will be the statement of the arresting officer and their observations of the driver as well as the saliva or blood test results, which are confirmed in a drug analysis certificate. The blood test will generally report the amount of the drug in the person’s blood as well as any comments from a medical officer as to what impairment an ordinary person would have with that level of drugs in the system.
A refusal to provide a drug test will result in a charge of failing to provide a drug test. This is a serious charge and is dealt with harshly by the Courts. If you are charged with failing to provide a sample you will be dealt with as if you were under the influence.
A person who pleads guilty or is found guilty of the UIL charge is subject to the same punishment as a high range drink driver that is a minimum of 6 months disqualification of their drivers licence and no ability to apply for a work licence.
Queensland has some of the harshest penalties for drug drivers in both fines and suspension periods. It is critical to get good advice about the charge and whether you might be able to apply for a work licence. Information on applying for a work licence can be found on our work licence page.
Here at Clarity Law we represent drug driving charges in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients. Other law firms simply don’t have the experience that we do and don’t know the process and the Magistrates like we do. We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice. If you want to engage us or just need further information or advice then you can call 1300 952 255 7am – 7pm seven days a week. Check out our drug driving charge for more information.
Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice. We are also not health professionals and our observations on drug driving is based on our knowledge of representing hundreds of drug driving client’s overs the past 15 years and not any specific medical training.