Driving with Illicit Substance

Click here for offences involving the combined offence of Drink driving / PCA and driving with illicit substance present in Oral Fluid.

Driving with Illicit Substance

Drive with Illicit Substance

Drive with prescribed illicit drug is when the driver of a motor vehicle or supervisor of a learner driver is caught with an illicit drug present in your blood and/or saliva.

This offence differs from Driving under the Influence as the mere presence of the illicit drug is all that is required to be proven. In other words, your driving does not to be effected in order for this offence to be proven.

At the moment a prescribed illicit drug is limited to the following:

3-4-methylenedioxymethylamphetamine / ecstasy
Cocaine
Delta-9tetrahydocannabional / THC
Methylamphetamine / speed

What penalty could I be facing?

If it is your first major offence in five years and you are convicted the maximum penalty is a fine of $1, 100. Your licence will be disqualified for an automatic period of six months; however, the court may reduce this period of disqualification to three months.

If it is your second major offence or subsequent alcohol related offence within the last five years and you are convicted the maximum penalty is a fine of $2,200. Your licence will be disqualified for an automatic period of twelve months, which the court can reduce to six months. Under the Interlock Program you can have an automatic disqualification of three months, this can be reduced to one month with an interlock period of 12 months.

Drive with illicit Substance
First Major offence within 5 year Period
Maximum Fine	$2,200
Automatic Disqualification	6 Months
Minimum Possible Disqualification	3 Months

Second Major offence within 5 year Period
Maximum Fine	$3,300
Automatic Disqualification	12 Months
Minimum Possible Disqualification	6 Months

Drive with Illicit Substance (Penalty Notice / Infringement Notice)

Drive with prescribed illicit drug is when the driver of a motor vehicle or supervisor of a learner driver is caught with an illicit drug present in your blood and/or saliva.

At the moment a prescribed illicit drug is limited to the following:

3-4-methylenedioxymethylamphetamine / ecstasy
Cocaine
Delta-9tetrahydocannabional / THC
Methylamphetamine / speed

Recently, legislation was introduced so that Police could proceed with this offence via penalty notice or ticket.

The amount is currently set at $561 meaning that it will appear on your ticket record but not be a conviction.

After payment of the fine the RMS will suspend you for a period of three months, you typically receive this notice in the mail however, you should be aware that it is automatic upon paying part or the full amount of the infringement notice.

You can opt to take both the infringement and licence suspension to court in order to try and reduce the penalty. However, this is not without risk and you should consult some expert legal advice as the court can decide to increase the penalty and/or record a conviction.

Possible Defences

There are a number of possile defences to Drive with Illicit Substance, it is important to remember to obtain competent legal advice early in your mater. Catron Simmons lawyers, will be able to assist you in determining whether there are any viable defences and what is best for your individual situation.

Some defences to DUI are:

– the test was conducted unlawfully

– that you were not the driver

– the test was incorrect (this would require expert evidence).

My Licence has been suspended, What can I do?

You need to lodge an application to the Local Court, this application must be within 28 days so it is important to get legal advice early.

The test for this appeal is quite high. The applicant must show that there are “exceptional circumstances” as to why you need a licence. Therefore, reasoning such as transport to/from work, school and/or even having your licence as part of your job are not considered exceptional or extraordinary.

Catron Simmons Lawyers, can assist you in preparing, the application to give you the best chance of returning to driving as soon as possible.

Helpful Information

What are the alternatives to imprisonment?

You should obtain legal advice before going to court and pleading guilty to any offence. A well presented sentencing will ensure that you receive the best outcome for your situation.

In NSW, a court can impose any of these types of penalties:

Non Conviction Dismissal (s10(1)a)

This is an order of the court that means there is no conviction recorded and no further action/penalties. Essentially as soon as you leave the court the matter is completely finalised.

Conviction Only s10A

This is an order from the court that means you are convicted of the offence but there is no further penalty and the matter is completely finalised once you leave the court room.

Community Release Order (CRO)

A CRO is the less serious of the bonds; they come in two forms conviction CRO and non-conviction CRO. These bonds can be supervised by Community Corrections or not, it is a matter for the court. That being said the court can order supervision and Community Corrections can discontinue supervision if they deem appropriate. A standard condition of all orders is that an offender must not commit any offence and that the offender must appear in court if called upon to do so. Additional conditions can also be imposed like any other bond that can include but not limited to alcohol/drug restrictions and/or rehabilitation, curfew, community service orders, non-association and/or place restriction orders.

Fine

A Court can order a fine as the whole or part of a penalty, meaning the court can order a bond in conjunction with a fine. A fine is a conviction. The maximum fine available for each offence varies and is usually articulated as part of the offence as a penalty unit. Generally speaking, after the court has sentenced you and given you a fine you have 28 days to pay, however, the court registry can increase this time to pay the fine and arrange payment plans. Failure to pay the fine will result in an enforcement order, this can have consequences such as suspension of your drivers licence and/or registration. Following this further orders such as a civil enforcement order, community service and/or goal may be utilised instead.

Community Corrections Order (CCO)

A CCO is the more serious of the bonds and are used when the offence is to serious to be dealt with by way of a fine or CRO. The CCO cannot exceed three years. This bond can be supervised or unsupervised by Community Corrections. A standard condition of all orders is that an offender must not commit any offence and that the offender must appear in court if called upon to do so. The court can add additional orders including but not limited to alcohol/drug restrictions and/or rehabilitation, curfew, community service orders, non-association and/or place restriction orders.

Intensive Correction Order (ICO)

An ICO is a type of imprisonment or custodial sentence yo to two courts that the court decides can be served in the community. The ICO is the most serious of court orders that an offender can serve in the community and are not available for a number of offences involving Violence, breaches of public safety and child related matters. The court can add conditions to an ICO such as home detention, electronic monitoring, curfews, community service work, alcohol/drug restrictions, place restrictions, association orders and/or whatever the court see fits. An ICO is monitored and supervised by Probation and Parole NSW and any breaches of the order are referred to the NSW State ParolAuthority (SPA) and not the courts. Often the offender is required to then serve the remainder of their sentence in custody as a result of a serious breach.

What are my options? What is a conviction?

A conviction means that the court has found you guilty and has deicide to record the offence in a ‘formal’ declaration.

It is possible to have a matter ‘proven, but no conviction recorded’ if the court sees fit. This is commonly referred to as a s10 (although it is now a Community Release Order without conviction or s10(1)a)).

If convicted of any offence, this is recorded on your criminal record. This existence of a criminal record may affect future employment, travel especially to places like the United States.

If you believe you are not guilty of an offence it is important to get legal advice early as there are discounts offered by the court for early pleas in sentencing.

What is written notice of pleading? Should I complete it?

A Written Notice of Pleading is a a document that is given to you by Police when charged or alternatively a letter or document sent to the court outlining your wish to plead guilty to the charges enforce the court.

Although this can be an attractive option and the forms seem fairly straightforward and it means that that you would not have to attend court this is actually a bad idea. A written notice stops the court understanding more about you as a person, your income, responsibilities and factors that could mitigate the punishment on sentence.

On a written plea of guilty the magistrate only has the Police Fact Sheet and Criminal Record as information, and often the penalty imposed would be greater, as the Court is not aware of the above factors. It is important to understand and agree with the contents of any fact sheet before they are tendered as this is what the court will base all their decisions on.

At Catron Simmons Lawyers, we can put forward the best case in your defence to often a fairer and more just outcome.

Traffic Law