Clarity Law - drivinglaw.com.au

South East Queensland's most experienced traffic law firm

driving under influence of a drug

  • Drug Driving

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

    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.

     

    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.

    If the preliminary saliva test is negative you will be free to go immediately. If a drug is detected in your system (positive result) you will be taken to a police station for a second saliva test. If the second test is again positive for drugs your driver’s license will be suspended for 24 hours. The remaining saliva sample will be sent to a laboratory and following the result you may be notified and charged with a traffic offence of drug driving. A person caught with these drugs in their system will normally be charged with driving whilst a relevant drug is in the system.

     

    Driving with a relevant drug in your system

    The is the lessor of the drug driving charges.  It is generally imposed where a salvia test shows up positive but the person is not otherwise showing any signs or indicia of being affected by that drug.

    For an open licence holder with no previous disqualification in the last 5 years the minimum disqualification starts at 1 month and can go as high as 9 months.  In many cases a person in this situation could apply for a work licence.

     

    Driving under the influence of a drug

    Driving under the influence of a drug (“DUI”) is the more serious of the drug driving charges in Queensland.  It is generally charged where a person is showing signs of being affected by drugs or where there is an accident and a blood sample is taken, tested and found to contain high levels of drugs.

    The minimum disqualification period for this charge is 6 months, if the person has no previous convictions.  It is not possible to apply for a work licence or any type of hardship licence if you are charged with driving under the influence of a drug.

    You can be charged with driving under the influence of any type of drug not just the ones tested for in the salvia test.

    Often we see this charge where a person is alleged to have shown Indica of being affected by drugs like;

    • 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

    Whilst the police would generally seek a salvia or blood test it is legal for them to charge someone for drug driving based on the driver’s indicia alone.

     

    But I had the drugs the day before and it would not have affected my driving

    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 frequency of use of the drug.

    There is a strictly zero tolerance with drug driving. If any traces of illicit drugs are found in your system you will be charged.  

     

    I’m being charged with driving under the influence of drugs but it was prescription drugs

    It does not matter what drug you had, if the police allege you were under the influence of a drug to such an extent that it did or could have affected your driving you can be charged even if it was a legal and prescribed drug.

    It is not only illicit drugs that are tested for.  If a police officer believes that your driving has been impaired by prescription or other drugs you will be required to undertake a drug test.  This will be in the form of a blood sample.  If the results show there are traces of drugs in your system you will, like any other drug driving charge, face possible fines, license disqualification and imprisonment and will have to appear in court.  This is known as a DUI charge and is equivalent to a high range drink driving charge.

     

    I’m being charged with drug driving but the police never tested me

    The police can charge you for driving under the influence of a drug based off your indicia or in other words how the police observe you and your behaviour.  You cannot be charged with driving with a relevant drug in your system based off your indicia.

     

    Are there defences to a drug driving charge?

    Most defences to a drug driving offence have now gone.  The tests the police carry out are considered to be accurate and are accepted by the courts.  If we are engaged we always look for any possible defences that may exist.

     

    Will I get a criminal record?

    This is a traffic offence that will appear on your traffic record but not your criminal history.  You can however ask the court not to record a conviction if it will affect your work, social wellbeing or prospects of getting employment.

     

    Can I get a work licence?

    If you are charged with driving or being in charge of a vehicle with cannabis, ecstasy or ICE in your saliva or blood, in other words a relevant drug charge, then you may be able to get a work licence but this must be done at the time you appear in the court to plead guilty, it cannot be done afterwards.  For more information on applying for a work licence if charged with drug driving or go to our work licence webpage for more information.

    If you are charged with driving under the influence of a drug (“DUI”) you cannot apply for a work licence or indeed any type of licence to keep driving during your disqualification. 

     

    What will happen in court?

    If you plead guilty, the court will usually deal with your matter immediately. The magistrate will read the charge to you and ask you how you plead. The magistrate may also ask you if you are entering the plea of your own free will. The police prosecutor will then read the outline of facts and give the magistrate copies of the drug analysis certificate, your criminal history and traffic history. The police prosecutor may also offer an opinion as to what penalties should be imposed on you.

    After the prosecutor has spoken, the magistrate will give you an opportunity to speak. Your lawyer (or you if you don’t have a lawyer) will then put explain what occurred, why it occurred, the positive things you have done since the offence, your general good character and the impact the penalty including the disqualification will have on you. This is done to support asking the magistrate to give you the minimum penalty that can be argued for on the strength of those facts and circumstances.

    The court will also consider any other material you might have obtained that will help reduce the penalty such as character references or completing a driving course such at Queensland Traffic Offenders Program (“QTOP”).

    Once your lawyer has spoken, the magistrate may seek further clarification of certain matter from the police, from your lawyer, or from both. The magistrate will then convict you, impose a penalty and disqualify you from driving for a certain period of time. That licence disqualification takes effect immediately.

    If you have applied for a work licence, the magistrate will indicate whether the application is granted. If it is granted the magistrate will state the conditions on which the licence is granted.

    Once you are disqualified, you must immediately surrender your driver’s licence to the police prosecutor. It is an offence to be in possession of your licence after you have been disqualified from driving.

     

    What penalty will be imposed?

    Well thought out submissions and arguments before a magistrate can in our experience significantly reduce the length of your disqualification.   For first time offenders with no other charges before the court the court will look to fines and disqualifications as a penalty.  For repeat offenders the court will be looking at a number of penalties from probation to prison.  No matter the penalty it will always include a disqualification. 

     

    What can I do to reduce my penalty and disqualification period?

    The best thing is obviously to engage an experienced traffic lawyer to act for you.  A lawyer knows what the court needs to hear to get the lowest penalty possible.

    Other things you can look to do is obtaining character references, where appropriate medical reports and completing the QTOP course.

     

    Will my matter be in the paper?

    Possibly, the court is an open to anyone, what this means is that any person is entitled to watch the court proceedings and report what occurred. 

     

    When does the disqualification begin?

    The disqualification starts immediately.  You would not be able to drive once you leave the court.  

      

    What happens after my disqualification period?

    After the period of disqualification has ended you will need to attend Queensland Transport and reapply for your licence.  You cannot simply start driving after your disqualification period has ended.

    After you have been disqualified for a drug driving offence you will be on a probationary licence for one year.

     

    Should I get a traffic lawyer to represent me?

    In a word, yes this is not an offence where you should simply turn up to the court without an experienced traffic lawyer.  The consequences and penalties the court may impose are too serious not to seek to minimise the penalty by lawyer with you.

    If you have a bad traffic history, have previously been convicted of drug or drink a lawyer is critical.  We get 3-4 calls a week from people who represented themselves in court and received extremely harsh penalties and need to try and appeal the result.  In most cases an appeal is exceedingly difficult and will cost a huge amount for the legal fees.  It is better to have a lawyer from the start to handle the matter property.

     

    Engaging Clarity Law to act for you

    Engaging us gives you the best chance at obtaining the lowest disqualification period and a fine as low possible.   We are the leading drug driving law firm in South East Queensland, everyday our lawyers are in Court getting the best outcome for clients.  Since 2010 we have appeared in over 500 drug driving cases and no one has the experience we do.  Just some of the benefits of us acting for you for your drug driving charge include;

    • we know the magistrates and what they want to hear to give you the best outcome
    • we have good relationships with the police prosecutors meaning we can often have them not object to the Court imposing the minimum disqualification period applicable.
    • we are there to help you through the process and make everything as stress free as possible, in most cases you will not have to say anything in court
    • engaging us shows the court you are taking your charges seriously
    • your matter will be heard early, often first, you do not have to wait for 20-30 other matters to be heard before you
    • you will be fully informed of what is to happen in court and what this means for you after court
    • unlike the police or the magistrate, we are there to look after you, your privacy and your interests

    Here at Clarity Law we appear every week in the courts with people charged with drug driving, it is this experience 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 magistrates like we do.

     

    What courts do you appear in?

    We appear in every court in South East Queensland.  Just some of the Court we appear in are;

    1. Beenleigh Magistrates Court
    2. Brisbane Magistrates Court
    3. Caloundra Magistrates Court
    4. Caboolture Magistrates Court
    5. Gympie Magistrates Court
    6. Holland park Magistrates Court
    7. Ipswich Magistrates Court
    8. Maroochydore Magistrates Court
    9. Noosa Magistrates Court
    10. Pine Rivers Magistrates Court
    11. Southport Magistrates Court
    12. Toowoomba Magistrates Court
    13. Wynnum Magistrates Court

    For a full list of courts we appear in click here.

     

    Will I need to come into the office to see you?

    We have offices in Brisbane and on the Gold Coast, Sunshine Coast, Strathpine, Loganholme and Ipswich but in most cases we can handle everything by email and the phone without you ever having to come into our office.  We are also open outside normal business hours for your convenience.

     

    What do you charge?

    We charge a flat upfront fee for our services, that means no hidden charges or unexpected bills.  We don't charge any travelling fees either; if you are in Maroochydore or Southport you will pay the same price as if you are Brisbane.

    We are also upfront with our fees, if you look at other law firms few, if any, clearly list how much they are going to charge you.  Clarity Law on the other hand are happy to list our prices as we are sure no other South East Queensland law firm can match our prices and experience. Our prices include;

    • full preparation for court including checking for defences and devising strategy to minimise penalty
    • negotiations with the police prosecution unit including obtaining traffic history and charge documents
    • drafting submissions for the court
    • arranging for you to attend a driving course (if appropriate)
    • all telephone calls, faxes emails and meetings with you
    • detailed information to you on the likely penalty and information on what will happen at court and afterwards
    • appearing in the court with you for your guilty plea to the drug driving charge

    To see what we will charge for a guilty plea click here

     

    If I contacted you what would occur?

    If you contact us then Steven Brough the firms founder or our office manager Belinda Smyth will take the call or receive the email. They have 40 years legal experience between them, we can provide immediate legal assistance and answer any questions you have. We will discuss your case, provide guidance and send a quote by email with additional relevant information about your charge, all at no cost.

    If you want to engage us then it’s easy, there is a form you can complete and email back or complete online. If you do not want to engage us or want to engage another firm that’s fine, you won’t be hassled and at worst you will just have more information about your charge. Once engaged one of our lawyers will go through your matter and contact you to discuss what the best way forward is to achieve the best results. Every one of our lawyers are very experienced with thousands of courts appearances between them.

     

    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. 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.  

     

    Need more information?

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

    This article general information only and not legal advice and is written subject to our disclaimer that can be read by clicking here