The offence of driving with prescribed illicit drug NSW

What is the offence?

It is an offence under s 111 of the Road Transport Act 2013 (NSW) to drive or attempt to drive a motor vehicle while you have a prescribed illicit drug or morphine in your system.

There are three separate elements that must be proved by the prosecution for a person to be found guilty of this offence:

• A person was driving, attempting to drive, or supervising an L plater who was driving;
• A motor vehicle; and
• They had a prescribed illicit drug OR morphine in their system.

These elements have been further defined in the legislation and in case law:

• In the context of this offence, "drive" has a very broad definition and includes controlling the steering, movement or propulsion of a motor vehicle. There is no requirement that a person be in control or performing all three of these actions at the same time. Generally, a person found behind the wheel with the vehicle turned on is enough to be considered "driving" for this offence.

• "Motor vehicle" includes any vehicle "that is built to be propelled by a motor that forms part of the vehicle". This means that you can technically commit this offence in more than just a car or motorbike – motorised or electric skateboards, scooters and bicycles are other examples.

• The Road Transport Act sets out four substances which are "prescribed illicit drugs" for the purposes of this offence. Those drugs are:
• THC (cannabis)
• Methylamphetamine
• Ecstasy (MDMA)
• Cocaine

How are these offences detected?

Drug driving offenders are most often detected because of a road-side oral fluid test. These can be part of a random testing stop (often combined with an RBT), as a result of an accident or collision, or because police have noticed something in a person's manner of driving which raises a reasonable suspicion.

Police then require a subsequent sample to be taken (usually an oral fluid sample, but there are circumstances where they can take a blood sample instead). This sample will be sent to a laboratory for further analysis. Often there can be significant delays between the taking of a sample and the result returning from the laboratory. Drivers can be charged and summoned to court months after the incident has occurred.

Do I have to go to court for this offence?

Drug driving can be classed as a 'penalty notice offence', which means police may use their discretion to issue you with a penalty notice (which will include a fine and an automatic license suspension) rather than a notice to attend court and face the risk of a criminal conviction.

It should be noted police can and do still send these matters to court, but they are not automatically required to do so. Data recently published by the NSW Bureau of Crime Statistics and Research indicates that on average police were issuing a penalty notice for 37% of all eligible cases (in the period May 2019 – March 2020).

However, this option only applies if you haven't committed a drug or drink driving offence in the previous 5 years. If you have, the matter automatically goes to court, and you will face the possibility of a criminal conviction and corresponding increased monetary and licence penalties.

Penalties:

The Road Transport Act provides the maximum penalties available for first and second (or subsequent) drug driving offences. It also attaches an automatic licence disqualification period, though the court has a limited discretion to raise or lower the period of licence disqualification.

The court can also choose to impose a 'conditional release order' in place of conviction, fine and licence disqualification. All conditional release orders require a person to be of good behaviour, but courts can choose to impose additional conditions, such as an order to abstain from drug use for the period of the bond and/or to attend drug counselling.

Defences available:

Oral fluid sample must be collected within statutory time limit:

It is important to ensure that the oral fluid sample has been taken within the time limits stipulated in Schedule 3 of the Road Transport Act. This means police officers must have collected an oral fluid sample within two hours of conducting a roadside drug test. If they have failed to do so, evidence of prescribed illicit drugs in a person's system have been obtained illegally and the court has the discretion to exclude this as evidence.

A person cannot be required to perform a drug test at home:

Another requirement under Schedule 3 of the Road Transport Act is that police cannot require someone to undergo an oral fluid test on their own property. If police engage you to do a drug test while you are within the bounds of your own property (this doesn't mean on the road or parked on the curb just outside) then the results of the test have been illegally obtained. Evidence gathered as a result of this conduct can be excluded by the court.

Statutory defence of morphine for medical use:

If a person has been charged under s 111(3) for driving with morphine in their system, they have a defence available to them under s 111(5). If the morphine has been taken for "medical purposes" then they have not committed an offence. "Medical purposes" refers to either:

• A morphine-based drug prescribed by a doctor and taken in accordance with their instructions; or
• A codeine-based drug purchased from a pharmacy that has been taken in accordance with the manufacturer's instructions.

Honest and Reasonable Mistake is NO LONGER available

Following a recent decision of the District Court of New South Wales (which was then subsequently upheld by the Supreme Court) a defendant is no longer able to raise the fact that they held an 'honest and reasonable' belief that they did not have any relevant drug in their system when they made the decision to drive.

There is no requirement to prove or disprove knowledge about the present of prescribed illicit drugs and no requirement to prove that a person intended to drive with drugs in their system.

This offence is now classed as an "absolute liability offence" which means a person's intention and knowledge have no relevance to their guilt. For more information about the removal of this defence, you can read more here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.