Drive while there is prescribed illicit substance present in oral fluid, blood or urine sample

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What is Drive while there is prescribed illicit substance present in oral fluid, blood or urine sample ?

Driving with the presence of certain drugs (other than alcohol) in oral fluid, blood or urine is an offence commonly known as Dru Driving. The most common way people are being charged with drug-driving offences are through the Mobile Drug Testing (“MDT”) units being conducted by police. This gives the police an oral fluid sample.

As one of the most reputable Drug Lawyers in Sydney we know that a person does not have to be impaired by drugs to be charged with a drug driving offence. Simply having a proscribed drug present in your system is enough to support a charge of drug driving.

Section 4 of the Road Transport Act 2013 defines prescribed illicit drug:

  • Active THC (Cannabis)
  • Methylamphetamine (Speed/ice)
  • Methylenedioxymethylamphetamine (MDMA or ‘ecstasy’) or
  • Benzoylmethylecgonine (cocaine)
  • Morphine (unless proven for medicinal use)

Case law/Jurisdiction

An offence of Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample will be heard in the local court

The Law

The Law in relation to Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample is found in section 111 of the Road Transport Act 2013(NSW) which states:

A person must not, while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug:

drive a motor vehicle,
or
occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion,
or
if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

What must the prosecution prove?

Since Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample.

To establish Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample the prosecution must prove each of the following matters beyond reasonable doubt:

  • You drove a motor vehicle, or
  • occupied the driving seat of a motor vehicle and attempted to put the motor vehicle in motion, or
  • If the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)-occupied the seat in a motor vehicle next to a learner driver who is driving the vehicle AND
  • There was the presence of prescribed illicit drug in person’s oral fluid, blood or urine.

Section 4 of the Road Transport Act 2013 defines prescribed illicit drug:

  • Active THC (Cannabis)
  • Methylamphetamine (Speed/ice)
  • Methylenedioxymethylamphetamine (MDMA or ‘ecstasy’) or
  • Benzoylmethylecgonine (cocaine)
  • Morphine (unless proven for medicinal use)

If you are charged with the offence of Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample what are your options?

National Criminal Lawyers have been successful in defending a number of Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample charges where the prosecution could not establish each of the elements offence. We have also achieved a number of non-convictions for Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample.

NCL offer the following options for those who have been charged with Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample for a first drug driving offence can be punished with a fine up to $1,100 and an automatic  disqualification from driving for six months with a discretion for the magistrate to impose a minimum disqualification of 3 months.

For the second or subsequent offence, penalties increase to a fine of $2,200 and a twelve-month disqualification with a discretion for the magistrate to impose a minimum disqualification of 6 months.

Please note that some of  the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers are experts at these hearings and can advise you on what the police must prove beyond reasonable doubt.

Defences

The drug tests used by police are notoriously unreliable, and they can show up positive days after an alleged offender has taken any drugs. Also, there are certain procedures that police must undergo when testing a person for drugs, and if you can show that they have gone against procedure when obtaining the evidence against you, you could have the charges withdrawn.

Some of the other possible defences available for those charged with Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample can include:

  • Honest and reasonable mistake- Where you honestly and reasonably believe that you do not have drugs in your system. An example of this is if because your food or drink had been spiked;
  • Alternatively, if a drug is in your system for medicinal purposes and taken in accordance with your prescription; or
  • If there has been a testing mistake or the results are inconsistent you may have a defence.

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For first offenders of Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine 62% received a fine whereas 32% received a non-conviction.

For second or subsequent offenders 86% received a fine.

Where the drug was morphine or cocaine 76% of offenders received a fine.

Interestingly 98.3% of all defendants either plead guilty or were found guilty.

Possible Penalty's

In NSW, a court can impose any of the following penalties for an Wounding or grievous bodily harm with intent charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and/or
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine; or
  • New Conditional release Order (CRO)

Case Studies

Our client was charged with Drug Driving after she was caught driving over the speed limit. We assisted in her sentencing case by gathering several character references. A positive case was put forward during her sentencing hearing which resulted in a non-conviction on the condition that she enter a good behaviour bond.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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