- You weren’t driving
- Defective testing apparatus
- You did not knowingly consume the drug
- You consumed the drug between the time of driving and the test
- Police failed to comply with their legal obligations
Legal Information Relating To
- What is drug driving – prescribed drug in oral fluid or blood?
- What are the penalties for drug driving – prescribed drug in oral fluid or blood
- If you plead guilty to drug driving – prescribed drug in oral fluid or blood
- Possible defences to drug driving – prescribed drug in oral fluid or blood
- Penalty Reduction
- What the prosecution must prove
What Is Drug Driving - Prescribed Drug in Oral Fluid or Blood?
There are two offences under the Road Traffic Act 1961 (SA) that relate to drug driving:
- Driving with a prescribed drug in oral fluid or blood (PCA) [s 47BA]; and
- Driving under the influence of alcohol or drugs (DUI) [s 47]
Driving with a Prescribed Drug in oral fluid or blood
It is an offence for a person to drive, or attempt to put a motor vehicle in motion, whilst a prescribed drug is present in his or her oral fluid or blood.
The following are a prescribed drug for the purposes of this offence:
- THC (cannabis);
- methylamphetamine (meth, ice, speed); and
- MDMA (ecstasy).
Drug saliva tests can only detect the presence of THC, methylamphetamine and MDMA. Where a roadside test is positive, police have the power to conduct either a further saliva test or a blood test. If the test is positive, you may face charges of driving with a prescribed drug in oral fluid or blood. Before charges can be laid the presence of drugs must be confirmed by laboratory testing. The saliva test is mandatory and there are penalties for drivers who refuse to cooperate.
If you are under the influence of a drug, other than a prescribed drug (either prescription or illicit), you may still be charged with the offence of ‘driving under the influence’.
Our criminal lawyers at Caldicott Lawyers are experts in all traffic matters and specifically in the area of drug driving.
What Is The Penalty For Drug Driving?
The penalty imposed for drug driving varies depending on whether or not you have committed a drug driving offence before.
First offence: $900 fine, minimum 3 month licence disqualification and 4 demerit points.
Second offence: $1,200 fine, minimum 6 month driver’s licence disqualification and 4 demerit points.
Third offence: $1,800 fine, minimum 12 month driver’s licence disqualification and 4 demerit points
What Are The Possible Defences For Drug Driving - Prescribed Drug in Oral Fluid or Blood?
You weren’t driving
In some drug driving cases, the wrong person is charged with an offence. There is a variety of ways in which this can occur. It may be that there was an administrative error on the prosecution’s behalf or perhaps, the offender was carrying your identification. Regardless, it is a complete defence to this charge if it can be shown that you were not driving the vehicle.
Defective testing apparatus
Given that a drug driving charge deals specifically with the presence of a prescribed drug in the oral fluid or blood, evidence to show that the results yielded by the oral fluid analysis or blood analysis were inaccurate will serve as a defence.
You did not knowingly consume the drug
It is a complete defence under section 47BA(2) of the Road Traffic Act 1961 (SA) if it can be shown that you did not knowingly consume the drug.
You consumed the drug between the time of driving and the test
This legislation is designed to punish and prevent driving while under the influence of a prescribed drug. Thus, if you have chosen to consume the drug prior to an oral fluid or blood analysis, but after having driven your vehicle, then you are not guilty of a drug driving offence.
Police failed to comply with their legal obligations
The Road Traffic Act 1961 and the Road Traffic (Miscellaneous) Regulations 1999 outline a number of procedural conditions in relation to breath and blood analysis with which police must comply. In the event that they fail to comply with any of these requirements (e.g. refusing your request for a blood test), you may have a defence to this charge.
If You Plead Guilty To Drug Driving - Prescribed Drug In Oral Fluid Or Blood
If you decide to plead guilty to an offence of drug driving we can assist you to get the best result possible. Our team of specialist criminal lawyers have extensive criminal law experience and know the best way to present your drug driving case before each of the Magistrates in the state. The results they obtain speak for themselves.
Before proceeding to plead guilty, the first thing we at Caldicott Lawyers do is make sure there is no possible defence to drug driving available to you. We then proceed to make certain, as best we can, that you get the absolute minimum penalty.
Deciding whether or not to plead guilty to drug driving has important implications and should be made after proper discussions with an expert criminal lawyer with experience in drink driving.
Call 08 8120 3783 to make an appointment with one of the knowledgeable lawyers at Caldicott Lawyers for assistance with your drug driving matter.
Trifling Application or Application for Reduction of Demerit Points
Trifling application or any other proper cause: made immediately after conviction may have the effect of reducing the amount of demerit points. The same magistrate who convicted the defendant is required to hear the evidence and decide if the offence is trifling or whether any other proper cause for reduction exists Zanker v Hyndman.
Proper cause must relate to the offence itself. The fact that they may suffer hardship from recording demerit points does not amount to proper cause Hepworth v Rowbottom.
It may be possible to reduce the penalty imposed, particularly the driver’s licence disqualification period, if we can prove that the offence was trifling.
What the prosecution must prove
- You drove a motor vehicle or attempted to drive a motor vehicle.
- The motor vehicle was on a road.
- You had prescribed drug in your oral fluid or blood at the time driving.
This is a summary offence and will be dealt with in the Magistrates Court of South Australia.
Come and see the professional team at Caldicott Lawyers for assistance in your drug driving matter.
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