How to Defend a Drug Driving Charge

drug driving

There are two primary ways that someone can defend against a drug driving charge:

  1. The prosecution fails to prove all elements of the offence. This might involve failing to prove that:
    1. The accused was driving or in control of the vehicle;
    2. The drug test results are reliable and accurate; or
    3. The police followed proper procedure, putting the drug test result in doubt.
  2. Successfully running the legal defence of honest and reasonable mistake of fact.

If you have been charged with drug driving, please contact a drug driving lawyer so that you can discuss how to achieve the best possible outcome in your matter.


What Are the Drug Driving Laws in Victoria?

In Victoria, drug driving is criminalised under the Road Safety Act 1986 (Vic), alongside drink driving laws.

The Act includes several offences related to drug driving. The most common drug driving charges in Victoria are driving while impaired by a drug (s49(1)(a)), driving with the presence of a prescribed illicit drug in oral fluid, blood or urine (s49(1)(bb)), and refusing to undergo a drug test (s49(1)(e)).

A person is guilty of drug driving if the prosecution can prove beyond a reasonable doubt that the accused:

  1. Was driving or in control of a motor vehicle; and
    1. Was impaired by a drug; or
    2. Had a prescribed illicit drug present in their oral fluid, blood or urine; or
    3. Refused to undergo a drug test as required by law within 3 hours of driving.

It is important to note that the presence of a prescribed illicit drug in a driver’s system, regardless of the level of impairment, is enough to be charged with drug driving in Victoria.


How Can I Defend a Drug Driving Charge?

To challenge a drug driving charge, the defence must present or point to evidence that:

  1. The accused was not driving or in control of the motor vehicle; or
  2. The accused did not have a prescribed illicit drug present in their oral fluid, blood, or urine while driving (s49(1)(bb)); or
    1. The drug test results are unreliable or inaccurate; or
    2. The drug testing device was not operated or operating correctly at the time of the test; or
  3. In the case of driving while impaired by a drug (s49(1)(a)), the accused’s driving was not impaired due to the consumption of drugs.

Successfully defending a drug driving charge may involve challenging the validity of the drug test, questioning the police procedures, or providing evidence that supports the accused’s claim of not driving or being in control of the vehicle.

It is crucial to consult with a drug driving lawyer to discuss the specific details of your case and determine the best course of action.


Show that You Were Not Driving or In Control of the Vehicle

Most drivers are charged with drug driving after being stopped for a random drug test. In those cases, there is typically no question the accused was “driving or in control of the vehicle”.

However, there may be some circumstances where the police did not witness the accused driving, and they have to rely on other evidence (e.g., witness testimony). In those situations, a lawyer may be able to demonstrate doubt that the accused:

  1. Was actually driving or in control of the vehicle; or
  2. Was sitting in the driver’s seat, intending to drive or attempting to control the vehicle.

Challenging the prosecution’s claim that the accused was driving or in control of the vehicle can be a crucial component of a drug driving defence. It is essential to consult with a drug driving lawyer to examine the specifics of your case and develop an appropriate defence strategy.


Show that the Drug Test is Unreliable

In some circumstances, it may be possible for a defence lawyer to show that the accused’s drug test result at the time of driving was unreliable or inaccurate.

Although the drug testing devices that the police use to detect the presence of prescribed illicit drugs in a driver’s system are presumed to be accurate and reliable, there can be instances where the test results are questionable. In such cases, the defence may wish to retain a pharmacology or toxicology expert. A pharmacologist or toxicologist may be able to evaluate the accused’s drug test results and the testing procedure.

This evidence might show that:

  1. The accused did not have a prescribed illicit drug present in their oral fluid, blood, or urine at the time of driving, despite testing positive at the time of testing; or
  2. The drug testing device was not operated or operating correctly, casting doubt on the accuracy of the test result.

If the evidence supports these claims, it may be used to defend a drug driving charge or lessen the penalty. Alternatively, it might show there is some doubt about whether the drug testing device was operated or operating correctly, which could be used to challenge the charge.

It is essential to consult with a drug driving lawyer to examine the specifics of your case and develop an appropriate defence strategy.

Drug Driving Victoria


Prove that the Police Failed to Follow Proper Procedure

When the police test and charge someone with a drug driving offence, there are specific procedures that they must follow. If the police fail to follow proper procedure, the defence may be able to challenge the drug driving charge.

In Victoria, it may be possible for the defence to argue that:

  1. The police did not obtain the drug test within 3 hours of the accused driving a vehicle;
  2. The accused’s drug test result was solely due to the consumption of a prescribed illicit drug after driving the motor vehicle; or
  3. The police made some other procedural error which led to an incorrect drug test result.


Is there a Legal Defence to Drug Driving?


Honest and Reasonable Mistake

There are very few legal defences in relation to drug driving – however, the defence of Honest and Reasonable Mistake may be applicable in some circumstances.

In Victoria, the accused may rely on the defence of honest and reasonable mistake if they prove the following three elements:

  • The mistaken belief was honest (a subjective test, or what the driver truly believed);
  • The mistaken belief was reasonable (an objective test, or if the Court thinks it was reasonable for the driver to believe that); and
  • The mistake was in regard to fact and not law.

This defence is challenging to raise, and you should contact a drug driving lawyer for advice.

Once the defence has been raised, the prosecution carries the burden of proving that the mistake wasn’t honest or reasonable. If the prosecution cannot disprove the defence, the accused must be found not guilty of drug driving.


What is the Penalty for Drug Driving in Victoria?


Penalty for Drug Driving

The penalty for a drug driving charge depends on:

  • How many previous drug driving convictions you have;
  • The specific drug driving offence committed.

The maximum penalty for a drug driving charge ranges from a fine of 20 penalty units (about $3,300) to 18 months imprisonment (s49(2A)).

Further, anyone found guilty of drug driving will face a mandatory disqualification period of at least 3 months (s50(1A)).


How Long Does a Drug Driving Conviction Stay on My Record?

How long a drug driving conviction stays on your public criminal record depends on how old you were at the time of being sentenced in court:

  1. 18 or Older: Your drug driving conviction will stay on your disclosable criminal record for 10 years, and on your VicRoads driving history indefinitely.
  2. Under 18: Your drug driving conviction will stay on your disclosable criminal record for 5 years, and on your VicRoads driving history indefinitely.

However, even if a conviction is removed from your public criminal record, the police and the Victorian courts may still be able to see the conviction on their private criminal records.


Car Insurance After a Drug Driving Conviction (Australia)

If you are convicted of drug driving, you may find that:

  1. Insurers do not want to provide you with car insurance
  2. Your premium rate increases dramatically
  3. Your excess is increased

A drug driving conviction normally affects your insurance for 3 to 5 years. It is essential to check your insurance policy, as most insurers require you to tell them if you have been charged with or found guilty of a drug driving offence. If you fail to inform them, you may not be covered by the insurer in the event of an accident.


Is it Worth Getting a Lawyer for a Drug Driving Charge?

If you are under investigation or charged with drug driving, it is worth getting a lawyer to discuss your legal options and answer questions like:

  1. Can the prosecution prove all elements of the offence?
  2. How will my previous drug driving convictions affect my case?
  3. How will the specific drug detected affect my case?
  4. Is there a legal defence I can rely on?
  5. Should I plead guilty or not guilty to drug driving?
  6. Can I negotiate my charges with the prosecution?
  7. Is expert forensic examination of the evidence required?

The police have no power to prevent you from telephoning a lawyer while they are questioning and testing you for drug driving, but they are not required to stop their investigation while you do so, or arrange for you to speak with a lawyer. There are significant penalties for refusing to comply with valid requirements for drug driving investigations, so it is important not to refuse to do anything “until I speak to my lawyer.”

Please contact our team at Sher Criminal Lawyers for expert advice and representation in your drug driving matter. We are here to protect your legal interests and help you achieve the best possible outcome.

Our drug driving lawyers are extensively experienced and frequently advise and represent clients in matters before the Magistrates Court of Victoria.

We are available 24/7 and offer free consultations by way of Zoom, Facetime, or in person at our Melbourne and Moorabbin offices.

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