Introduction

The Napthine government, through the Transport Accident Commission (TAC), has announced that $4.5 million will be provided to Victoria Police over the next 12 months in an effort to decrease drug driving. While the campaign is specifically targeting methamphetamine (ice) use, roadside drug testing will also be able to detect the presence of other illegal substances.

Funding will provide more drug testing equipment to Victoria Police, raising the number of roadside drug testing devices to 100,000 over the next year. Devices will be made available rurally as well as in suburban and city areas.

The Victorian government is looking to drastically curtail the rising number of ice users throughout the state. The state Opposition has pledged a further $15 million towards drug and alcohol testing, should they be successful in the next elections.

Drug driving offences in Victoria

Under section 49 of the Road Safety Act (RSA), it is an offence to drive a motor vehicle while under the influence of drugs or alcohol to the extent that the driver is incapable of having proper control of the vehicle.

The limit for alcohol is 0.05 BAC. However, any presence of an illicit drug, or even a legal drug that renders a driver incapable of proper motor vehicle control, will make the driver liable to a charge under the RSA. This includes (but is not limited to) cannabis, ice, ecstasy and speed, as well as certain prescription drugs. It is also an offence to supervise a learner driver while under the influence of drugs.

The police may suspect (under section 55A of the RSA) that a driver is under the influence of illicit drugs, and request a sample of oral fluid to confirm the fact. Under section 55D, it is an offence to refuse a roadside saliva test if it is requested by police.

If the preliminary saliva test shows a positive indication of one or more illicit substances present in the driver’s system, then a number of outcomes are possible. The driver may be asked to accompany the police officer to either a drug and alcohol bus or the police station for a second oral fluid assessment. If the driver is incapable of providing a saliva sample, or the machine is not working, a blood sample may be required in accordance with section 55E(13).

If the indication is positive for illicit drugs, both the officer and the driver are to be given a sample of the fluid or blood. The driver can then request another analysis to be undertaken by a medical practitioner in the officer’s presence.

The driver may be charged or issued with an infringement notice. The police may summon the driver to appear in court, depending on the severity of the offence. The driver’s licence may also be immediately suspended, meaning the driver cannot operate a motor vehicle until the suspension has lapsed or been varied by the court.

Drug Driving Penalties in Victoria

Different penalties apply depending on the offence. As an indication, the following tables may be a helpful guide to the possible penalties applicable to drug driving offences.

Failing a roadside saliva test

Driving while impaired by a drug

Harsher penalties may apply if a driver refuses to give a saliva, blood or urine sample when requested to do so by police. Refusing to give a sample does not mean the police cannot charge you for drug driving. Drug driving charges may still be made and upheld in court despite a lack of physical evidence if the driver has unlawfully refused to provide a sample.

Because of the danger posed to the safety of individuals, other road users and the general public, the courts take a hard stance against drug driving. If you have been charged with drug driving, it is important that you seek expert legal advice as soon as possible. An experienced drug driving lawyer will be able to raise any relevant defences to your drug driving charges and may help you avoid a conviction. This could drastically impact your ability to find employment in the future.

Defences

There are a number of legal defences an experienced criminal lawyer can raise on your behalf. If you have been charged with failing a roadside saliva test and are summoned to court, you should seek expert legal help immediately.

Police officers must take saliva samples according to procedure. If there has been a failure to follow the procedure as per section 55D(3), the saliva sample may not be admissible in court.

If you have been requested to provide a saliva sample, but it has been more than three hours since you last drove a motor vehicle, you may have a defence under the Road Safety Act. Sections 55A(2) and 55D(8) provide that drivers can legally refuse to provide a sample if more than three hours have elapsed since driving. Refusal to provide a sample in this case would not result in a charge of failing to cooperate with police.

A driver may also be able to raise a defence under section 55E(12) where there is a reason of substantial character for refusing to give a sample of fluid. The courts apply this provision narrowly, and the defence is rarely raised successfully.

What you should do if you have been charged with drug driving in Victoria

To give you the best chance of escaping conviction and possible imprisonment, it is critical that you contact a skilled criminal lawyer as soon as possible. They will be able to offer you advice on how best to approach your matter, whether that means accepting a guilty plea with a reduced penalty or raising a valid legal defence.

If you have been charged with driving while impaired by a drug or failing a roadside saliva test and have been summoned to court, or if your licence has been suspended as a result of failing a roadside saliva test, contact one of our experienced criminal lawyers today. We have offices in Melbourne CBD, Dandenong, Frankston, Moorabbin & Ringwood, with 24-hour phone service available. Don’t take risks with your future, livelihood or reputation.