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The offence of drive with prescribed illicit drug is committed if you drive a motor vehicle on a road, or supervise a learner driver, with an illicit drug present in your blood or oral fluid. The mere presence of the drug is all that is required. There is no requirement for the prosecution to show that you were under the influence or affected by it at the time. A prescribed illicit drug is any of the following:
While there are devices capable of measuring the amount of THC or cannabis in a drivers system these devices are not in use within Australia.
| Fine | Disqualification |
|---|---|
| $2200 | 6 months – can be reduced but not less than 3 months. |
| Fine | Disqualification |
|---|---|
| $3300 | 12 months – can be reduced but not less than 6 months. |
Similar to RBT, police will first administer a roadside swab. This determines whether or not there are any prescribed restricted drugs in your saliva. If that test is positive then you’ll be required to provide a further sample of saliva either at the police station or often in an RBT bus set up near the testing site. If this secondary test is also positive it is sent to a lab for proper analysis. If that analysis also comes back positive police will take action in the form of a court attendance notice or penalty notice.
Police may decide to issue you a penalty notice for drive with prescribed illicit drug. The amount is currently set at $561. This means you do not have to go to court. Payment of the penalty notice will not result in a criminal conviction being recorded. You can choose to have the matter determined by a court. A court may find you guilty and choose not to record a conviction. However, taking these matters to court is not without risk as you may have a conviction recorded on your record and face higher penalties.
As soon as a penalty notice for drive with prescribed illicit drug is paid (in part or full) the RMS will send a notice of suspension. This notice will indicate that your licence is to be suspended for a period of three months. You can apply to the court and lodge an appeal against this 3 month suspension. For more information in relation to this process see our page on RMS licence appeals.
If you receive a court attendance notice you will need to attend court on the date listed on your court attendance notice. Similarly, if you received a penalty notice and elected to have the court determine your matter, you will also receive a court attendance notice. The first appearance at court for a drive with prescribed illicit drug charge is a mention date. It will most likely be in a busy list with many other people. Everyone’s court attendance notice says 9.30am so you may be there quite some time. At the mention date you can tell the court whether you would like to plead guilty, not guilty or seek an adjournment. If you plead guilty you may be able to be sentenced on the same day. This is usually not advisable unless you are well prepared. If you plead not guilty you will be allocated a hearing date several weeks away. You can also ask the court to adjourn your matter for a short time (usually two to four weeks) so that you can speak with a lawyer, obtain some references, and complete an approved traffic offenders program.
Drive with prescribed illicit drug is a criminal offence. If you elect to have your matter heard at court, or are given a court attendance notice by police, you may face a criminal conviction. A criminal conviction for drive with prescribed illicit drug will appear on your criminal record and in criminal background checks. There are generally only two ways in which you can a avoid a criminal conviction for drive with prescribed illicit drug. You can plead not guilty and have the matter dismissed if you are successful, or you can persuade the court to deal with the matter by finding you guilty but not recording a conviction.
Statistics from the New South Wales Judicial Commission show that over a recent four year period over 60% of people charged with drive with prescribed illicit drug were convicted. Over 35% did not have a conviction recorded. The majority drivers who were not convicted were placed on a bond to be of good behaviour.
When determining your matter, the Magistrate will read the court attendance notice, police facts sheet, and any material you bring to court. They will also listen to anything that you or your lawyer wish to tell the court. These are called submissions. It is important to ensure that your matter is well prepared. In a busy court there is only limited time for each matter. You need to be able to draw the courts attention to all the relevant considerations quickly. References need to be formatted, addressed and drafted correctly. It is also important that you complete a traffic offenders program.
Astor Legal are experts in traffic and criminal law. All of our lawyers are experienced in drink driving matters. Our firm was started by two former police prosecutors who not only handled dozens of these matters every day in court but also used to conduct breath tests and breath analysis tests themselves. We know the systems and processes. Our lawyers will work with you to prepare your matter and then represent you at court. Take advantage of our obligation free case assessment and find out how we can get the best outcome for your matter.
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