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Driver Caught Snorting Substance Off Mobile Phone: The Law, Defences and Penalties for Drive Under Influence (DUI)

Traffic cameras have captured a shocking image of a driver appearing to snort a substance off a mobile phone while driving.

Driving Under the Influence of a Drug is ordinarily seen by the Courts as a serious offence. The seriousness of this offence would be significantly amplified if a driver is also using a mobile phone.  

The driver has been issued with a Court Attendance Notice for Driving Without Proper Control of a Vehicle, Negligent Driving, and Use Mobile Phone While Driving.

Notably, the driver was not charged with either Drive Under the Influence (DUI) or Drive With Illicit Drug Present.

The image has led to widespread outrage throughout the community and calls for tougher penalties for road users who break the law.

Why Wasn’t the Driver Charged with DUI?

The 21-year-old driver is due to appear at Blacktown Local Court on 14 October.

The young man was detected by a mobile phone camera on the M4 at Wentworthville on 14 August. The image appears to depict the Accused using his left hand to hold a phone and his right hand near his nose as his head is bent towards the screen.

The passenger appears to be leaning over him to hold the wheel.

While on first blush it may seem apparent that the driver is sniffing a substance, Police would need to prove that the substance was an illicit drug.

In an interview with Ray Hadley on 2GB, NSW Police Acting superintendent Bill Darnell cited that very reason as to why Police could not charge him with a drug related offence.

“We have an opinion on (what he may have been doing) but it’s down to what we can prove when the magistrate hears our evidence. On that basis, we didn’t feel we could prove … what that substance might be and what he was doing with that substance,” he said.

Mr Darnell however argued that the offences the Accused had been charged with were serious in their own right, stating, “Combined, there are 11 points and over $1200 worth of fines just in those traffic offences alone.”

What is Drive Under the Influence (DUI)?

Driving Under the Influence of a drug is defined in Section 112 of the Road Transport Act 2013 (NSW).

The Police must prove, beyond reasonable doubt that:

  1. The Accused was driving a motor vehicle on a road or road related area; and
  2. At the time the Accused was under the influence of any drug or alcohol.

Experienced Sydney DUI lawyers know how to beat a DUI charge. One way of doing it is to argue that Police cannot prove the driver was affected by a drug when driving. If the Court accepts this, then the Accused will be found ‘not guilty’.

What are the Penalties for DUI?

If you are found guilty or plead guilty to a DUI charge, the maximum penalties are based on whether it is your first offence or not.

For a first offence, the maximum penalty for DUI is 18 months imprisonment and/or a fine of $3300. There is also an automatic disqualification of 3 years which can be reduced to 12 months.

For a second or subsequent offence, the maximum penalty for Driving under the influence is 2 years imprisonment and/or a fine of $5500. The automatic disqualification is 5 years which can be reduced to 2 years.

On rare occasions, a person can avoid a disqualification by receiving a non-conviction. This is sometimes known as a ‘Section 10’.

There are a number of factors that the Court takes into account when deciding whether or not to convict an Accused, including whether they have any previous offences, their prospects of rehabilitation and objective seriousness of the offending.

For information on how to get a section 10 for DUI, click here.  

 What is Drive with Illicit Drug Present?

Driving with Illicit Drug Present is defined in Section 111 of the Road Transport Act 2013 (NSW).

The prosecution must prove, beyond reasonable doubt, that the Accused:

  1. was driving a motor vehicle on a road or road related area; and
  2. had a prescribed illicit drug in their oral fluid, blood or urine

The following are known as prescribed illicit drugs:

  1. Ecstasy (methylamphetamine)
  2. Speed (3,4-methylenedioxymethylamphetamine)
  3. THC (delta-9-tetrahydrocannabinol)
  4. Cocaine

It is generally far more difficult to be found ‘not guilty’ of this offence, as there is very little the Police need to prove.

The primary method of how to beat a Driving with Illicit Drug Present charge is to argue that the Police were not entitled to test a person for the presence of an illicit drug.

What are the Penalties for Drive with Illicit Drug Present?

The maximum penalty for Driving under the influence (first offence) is 18 months imprisonment and/or a fine of $3300. The automatic disqualification for a first offence of Driving with illicit drug present is 6 months. This can be reduced to 3 months.

The maximum penalty for Driving under the influence (Second or Subsequent offence) is 2 years imprisonment and/or a fine of $5500. For a second or subsequent offence of Driving with illicit drug present, the automatic disqualification is 12 months which can be reduced to 6 months.

If you are charged with this offence, you would generally have a better chance of receiving a ‘Section 10’ with no conviction than a DUI. This is because your were not under the influence of a drug and as such not a risk to yourself or other road users.

What is the Difference Between DUI & Drive with Illicit Drug Present?

While both Drive Under Influence of Drug and Drive with Illicit Drug Present are similar offences, there is one key difference.

In order to establish a DUI charge, the prosecution must prove, beyond reasonable doubt that the Accused was under the influence of the drug.

This is not the case for a charge of ‘Drive with Illicit Drug Present’. For this charge, all Police need to prove is that the driver had an illicit drug present in their system.

It is important to note that the prosecution do not have to prove that an Accused’s driving was affected by drug or alcohol use. The decision of DPP (NSW) v Kirby [2017] NSWSC 1754 explains that all that needs to be proven is that the Defendant was under the influence of a drug.

There have been calls for the Drive with Illicit Drug Present law to be scrapped. If a person consumed a drug days or weeks beforehand, it can still remain in their system, even though their driving is not affected and they are not a risk to themselves or other road users.

It seems unfair that a person should then be punished, despite not being a danger to the community.

In the present case, Police would not be able to prove the Accused’s driving was affected at the time of the offence. They would also not have any evidence that the driver had an illicit drug in his system at the time of driving.

What is the Likely Penalty for DUI?

Had the driver been charged and found guilty of Drive Under the Influence or Drive with Illicit Drug present, he would likely be looking at a disqualification

Despite the significant risk to the community, the driver will likely escape with a fine and no risk of jail time.

If he was on his full licence and had not incurred any demerit points prior to this incident, he will also keep his licence.

That is because the offences he has been charged with do not carry any terms of imprisonment. Therefore, even if the Court wanted to punish the driver more severely, they would not have the power to do so.

Could the Driver Have the Charges Withdrawn?

To make matters worse, it appears that Police have overcharged the driver and breached the rule against ‘double-jeopardy’. This is also known as pleas in bar of autrefois acquit and autrefois convict.

Double-jeopardy in sentencing proceedings was explained in the decision of Pearce v The Queen (1998) 194 CLR 610 at [40]:

“To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.”

It is arguable that the elements of the offence of Negligent Driving encapsulate the offence of Driving Without Proper Control of a Vehicle.

On that basis, one of those charges should be withdrawn.

If the charges are not withdrawn, there would be a strong argument that the Accused should receive a non-conviction, also known as a ‘Section 10’, for the offence of Driving Without Proper Control of a Vehicle.

To do otherwise would risk punishing him twice for the same act.

In Conclusion…

Despite community outrage over the driver’s actions, it appears that he will escape relatively unscathed.

But for a fine and loss of demerit points, there is little scope for the Court to punish him any further.

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