Drug Driving: Understanding the Consequences and Penalties in Brisbane Magistrates Court

Drug Driving: Understanding the Consequences and Penalties in Brisbane Magistrates Court

Drug Driving is a serious offense that can have severe consequences. In Queensland, it is illegal to drive a vehicle while impaired by drugs. The law firm Clarity Law based in Brisbane can help you understand the legal implications of drug driving and provide expert legal representation if you are facing charges. In this article, we will explore what drug driving is, how matters are heard in the Brisbane Magistrates court, and the penalties that can be imposed.

Table of Contents

1. Introduction
2. What is Drug Driving?
3. How is Drug Driving Detected?
4. Penalties for Drug Driving in Brisbane
• First Offense
• Second Offense
• Third or Subsequent Offense
5. Matters Heard in the Brisbane Magistrates Court
6. Defenses to Drug Driving Charges
7. Conclusion
8. FAQs

Introduction

Drug driving is a serious offense that is treated as a criminal offense in Queensland. The consequences of drug driving can be severe and can have long-lasting effects on your personal and professional life. If you have been charged with drug driving in Brisbane, it is important to seek the advice of a qualified lawyer who can help you understand your legal rights and options.

What is Drug Driving?

Drug driving is the act of operating a vehicle while under the influence of drugs. It is illegal to drive a vehicle while impaired by drugs in Queensland. The term "drugs" refers to illegal drugs such as marijuana, cocaine, and ecstasy, as well as prescription drugs that can impair your ability to drive safely.

How is Drug Driving Detected?

Drug driving can be detected through a variety of methods. Police officers in Queensland use a combination of roadside drug testing and saliva testing to detect drivers who are under the influence of drugs. Roadside drug testing involves the use of a saliva testing kit that can detect the presence of drugs in your system.

Penalties for Drug Driving in Brisbane

The penalties for drug driving in Brisbane depend on a number of factors, including the type of drug detected, the amount of the drug in your system, and whether it is your first offense. The following are the penalties that can be imposed for drug driving in Brisbane:

First Offense

For a first offense of drug driving, the penalty can include a fine of up to $3,306 and a disqualification from driving for a period of up to 9 months.

Second Offense

For a second offense of drug driving within 5 years of the first offense, the penalty can include a fine of up to $5,508 and a disqualification from driving for a period of up to 2 years.

Third or Subsequent Offense

For a third or subsequent offense of drug driving within 5 years of the first offense, the penalty can include a fine of up to $11,016 and a disqualification from driving for a period of up to 5 years.

Matters Heard in the Brisbane Magistrates Court

Matters related to drug driving are heard in the Brisbane Magistrates Court. If you are charged with drug driving, you will be required to appear in court and enter a plea. Depending on the circumstances of your case, the court may impose penalties such as fines, community service, or imprisonment.

Defenses to Drug Driving Charges

If you are facing charges of drug driving in Brisbane, there are a number of defenses that may be available to you. These include challenging the accuracy of the testing procedures used by the police, demonstrating that you were not impaired by drugs at the time of the offense, or arguing that the drugs were taken for legitimate medical purposes.

Conclusion

Driving under the influence of drugs is a serious offense in Queensland that can have significant legal and personal consequences. If you are facing charges of drug driving in Brisbane, it is important to seek the advice of a qualified Brisbane Drug Driving lawyer who can help you understand your legal rights and options. The team at Clarity Law is dedicated to providing expert legal representation to those who have been charged with drug driving. Contact us today for a confidential consultation.

FAQs

1. What are the penalties for drug driving in Queensland?

• The penalties for drug driving in Queensland depend on a number of factors, including the type of drug detected, the amount of the drug in your system, and whether it is your first offense. The penalties can include fines and disqualifications from driving for various periods.

2. Can I lose my license for drug driving in Brisbane?

• Yes, it is possible to lose your license for drug driving in Brisbane. The length of the disqualification period depends on the circumstances of your case.

3. What should I do if I am charged with drug driving in Brisbane?

• If you are charged with drug driving in Brisbane, it is important to seek the advice of a qualified lawyer who can help you understand your legal rights and options.

5. How can Clarity Law help me with my drug driving case?

• The team at Clarity Law can provide expert legal representation and advice to help you understand your legal rights and options and achieve the best possible outcome for your case.

 

Drug Driving Penalties in Queensland

In Queensland, it is illegal to drive under the influence of drugs or have certain drugs present in your system while driving.

This can result in two types of drug driving offences; driving with a relevant drug present, and driving under the influence of a drug. A relevant drug includes methylamphetamine, MDMA, and THC, and if you are suspected of having these drugs in your system, you can be pulled over for a random roadside saliva test.

Penalties for driving with a relevant drug present in your system are severe. If found guilty, you will be required to attend court, and your license will be disqualified for a period of time. T

he length of disqualification depends on your license class, previous driving record, and how the offence occurred. For first-time offenders on an open licence, the disqualification period is between 1 to 9 months, whereas for those on a provisional or unlicensed the disqualification period is between 3 to 9 months. However, if you have previous convictions for drug or drink driving in the last 5 years, the minimum penalty increases to 3 months, and the maximum penalty increases to 12 months.

Driving under the influence of a drug is a more serious offence. If charged with this offence, your license will be immediately suspended until your matter is finalized in court, and you will face a more severe penalty than if you were charged with driving with a relevant drug present. Currently, the minimum disqualification for a charge of driving under the influence of a drug is 6 months.

When deciding the punishment, the court takes into account various factors, including the drugs found in your system, prior drink or drug driving offences, traffic and criminal history, age, work arrangements, family situation, impact on work and family commitments, early guilty plea, participation in courses, cooperation with police, financial circumstances, and future conviction recording.

If you are facing a drug driving charge, you may be eligiblefor a work licence, which allows you to drive for the purpose of earning an income. To be eligible, you must hold an open Queensland driver's licence and not have any disqualifications or suspensions on your record within the past 5 years.

A work licence may be a viable solution for those who meet these requirements and are facing a drug driving charge.

You should contact good drug driving lawyers to get proper advice on the best way forward.

Can the police go through your mobile phone?

 Introduction:

A charge of contravening an order about device information from a digital device, also known as a section 205A offence, may be brought against a defendant who refuses to allow access to their devices as required by a search warrant under sections 154(1) or (2), 154A(2), or 178A(1) of the Police Powers and Responsibilities Act 2000 (PPRA). This offence was created to combat serious and organized crime and is taken very seriously by the courts. According to the District Court of Appeal, this offence strikes at the heart of the administration of justice, as it involves a failure to comply with a court order. Consequently, the penalty imposed should take into account the need for general deterrence and denunciation.

Elements of the Offence: The offence occurs when a person, without a reasonable excuse, fails to provide access to an electronic device after being served with a relevant warrant under the PPRA or the Crime and Corruption Act. For example, refusing to provide the password to a laptop or mobile phone during the execution of a search warrant. It is worth noting that the police must inform a person that failing to comply without a reasonable excuse constitutes an offence against section 205A of the Criminal Code.

Defences: The key defence for a defendant is having a reasonable excuse for not providing access to the device. The Court has defined a reasonable excuse as something an average person would consider reasonable. Legal professional privilege is protected and can constitute a reasonable excuse, as determined in Commissioner of Police v Barbaro [2020] QCA 230. However, not every instance where privilege is claimed will be a reasonable excuse, and it is up to the defence to establish a claim for privilege. In Queensland Police Service v Ahmed [2023] QMC 2, the court found that a genuine religious belief could be a reasonable excuse to not comply with a warrant to provide access.

It is important to note that self-incrimination is not a reasonable excuse. If complying with a warrant would incriminate a person of an offence, they cannot use this as a defence.

Why Contact a Lawyer: As this charge can result in imprisonment, it is important to seek legal representation. By engaging a lawyer, a defendant can determine if there is an available defence and obtain the best possible outcome. Clarity Law can review the case and assist in obtaining the best available outcome in the circumstances.

Conclusion: This article is not an exhaustive guide to this offence but can serve as a starting point for those who have been charged but not yet been to court. If charged with this offence, it is recommended to contact Clarity Law for a free initial consultation.

Can You Get a Work Licence If Charged with Drug Driving in Queensland?

 

If you've been charged with drug driving in Queensland, you may be wondering if it's possible to get a work licence. A work licence is a special type of authority issued by the court that allows you to continue driving for work purposes even if your licence becomes disqualified by the court for drug driving. In this article, we'll discuss the requirements for obtaining a work licence in Queensland and explain how it works.

 

Drug Driving Laws in Queensland

Before we dive into the details of work licences, it's important to understand the two types of drug driving charges in Queensland. The first is driving with a relevant drug present, which refers to having one of three specific drugs in your system: methylamphetamine (also known as speed or ice), MDMA (the active ingredient in ecstasy), or THC (the active ingredient in cannabis). The second charge is driving under the influence of a drug, which can include any drugs (legal, illegal, prescribed or not) that police believe have negatively affected your ability to drive.

 

Eligibility for a Work Licence

To be eligible to apply for a work licence, you must meet several criteria:

1. Hold a current Queensland open driver's licence for the vehicle you were driving. The open licence must have been held at the time of committing the offence.
2. Have committed the drug driving offence by driving with a relevant drug present (and not driving under the influence).
3. Not have been driving for your job at the time you were charged (with some exceptions for jobs where driving is not the main component).
4. Not have been driving under a learner, provisional, probationary or restricted licence.

In addition, you must not have been convicted anywhere of drink driving or drug driving, or a similar offence, in the last five years. You also cannot have been disqualified by any court, had a licence suspended or cancelled (except in certain limited circumstances), or previously applied for a work licence.

 

Why a Work Licence is Important for Drug Driving Charges

In Queensland, there are mandatory periods of disqualification for drug driving offences. This means that if you plead guilty to drug driving, you will be disqualified from driving for a period of time. A work licence is important because it allows you to keep driving for work purposes during that disqualification.

 

Applying for a Work Licence

If you are charged with driving with a relevant drug present, you may be able to apply for a work licence when you appear in court to plead guilty. However, if you are charged with driving under the influence of a drug, you cannot apply for any type of licence to keep driving during your disqualification.

If the court grants you a work licence, it will allow you to drive for purposes directly connected with the means of earning an income. This includes driving to and from your place of work using the shortest route possible, as well as driving for any required work duties.

To apply for a work licence, you must provide the court with an affidavit of yourself and, if you're not self-employed, an affidavit of your employer. Your affidavit should address your personal, work, financial and driving circumstances, while your employer's affidavit should explain why you need a licence for your job and state that you will lose your job unless you are issued with a work licence. Both affidavits must be in the correct format, contain all necessary information to satisfy the magistrate, and be properly witnessed. They must also be accompanied by an application form.

 

Conclusion

If you are charged with drug driving in Queensland, it may be possible to obtain a work licence that will allow you to continue driving for work purposes during your disqualification period.

Guide to Drug Driving Laws in Queensland

Introduction

Driving while a ‘relevant’ drug is present in your blood or saliva is an offence under the Queensland traffic legislation. For present purposes we will consider a ‘relevant drug’ as either cannabis, MDMA or methylamphetamine (Ice), as these are the only illicit drugs the police saliva tests currently detect.

This article is written by Jacob Pruden from Clarity Law one of Queensland's most experienced drug driving lawyers.

 

How in a drug driving offence detected?

In the vast majority of cases, police will direct a person to pull over and then give the person a ‘stick’ to swab over their tongue/inside of their mouth. The result is usually immediate. This is called a saliva test. Less commonly, police may require a blood test. This will generally only happen if a person is at a hospital (usually in relation to a crash), and police ask a nurse or doctor to take a sample of blood.

Once a drug is detected by the preliminary test, it is then sent to a government-run lab for thorough analysis. So long as the analysis result comes back contained within the correct form/certificate, this is considered to be conclusive evidence that a drug was present in the sample provided, and is therefore conclusive proof there was a drug present in the driver’s saliva or blood.

 

How much can be in your system before it is illegal?

The drug driving laws only require a detectable amount of a relevant drug to be in a person’s saliva. That is to say, the analysis results do not, unlike drink driving analysis results, give a figure of just how much of the drug was in the person’s body. This means, perversely, that a person can have the smallest trace of the drug in their system, and if this is detected, it will be sufficient to establish a charge of drug driving.

So, any detectable amount is illegal, and we do not know at what point a quantity of drug transforms from undetectable to detectable. Anecdotally, we have been told it can be days, and in extreme cases, even a week after a person has taken a drug, that it can be detected by the tests.

 

But I didn’t feel affected!

Having had the opportunity to observe self-represented defendants in court, a common claim/complaint is the person was not under the influence or had had the drug some days before the test. Again, unlike drink driving offences, there is no legal requirement for the person to be affected by the drug in any way.

In an indirect way, the drug driving traffic laws do what the drug possession laws don’t: they penalise drug consumption as opposed to drug possession. Given the sizeable number of people in Queensland who consume cannabis (and the other drugs to a lesser extent), enforcing these offences is low-hanging fruit for police.

 

What if I have a medical prescription for cannabis?

Unfortunately, it is still an offence to drive while cannabis is present in your saliva, even if it is prescription cannabis. The linked article explains in greater detail.

 

Expected Penalties

The law mandates minimum disqualifications for these offences.

For the first offence, for a person on an open licence, the minimum disqualification is 1 month. For a subsequent offence within 5 years, it is 3 months. For two prior offences within 5 years, it is 6 months.

For a learner, P plates, or unlicenced driver, the minimum penalty starts at 3 months.

The Court has the power to increase the disqualification past the minimum, but will generally only do so if there is reason to believe the drug actually affected the driving, i.e., the driver caused a crash or came to police attention by swerving all over the road.

Aside from disqualifications, the other penalty to expect is a fine of $250 or more. There is no set rule on the amount of the fine; some magistrates can impose fines as high as $600.

Be aware, too, that if you accumulate two or more drug driving offences before you have them dealt with in court, the disqualifications will stack, that is, run one after the other. So, if you got two drug driving offences on an open licence a couple of days apart, and were then dealt with by a court, your minimum disqualification would be 2 months: 1 month for each offence.

 

Possible Defences

Honest and reasonable mistake

Unfortunately, this defence is specifically precluded by section 79(12) of the Transport Operations (Road Use Management) Act 1995. That means even if there is a drug in your system and you don’t know how it got there, or it got there in some way that you didn’t intend (such as second hand smoke), you will still be liable for the offence.

Emergency

It is a defence if you can prove that you drove, and it was an emergency. Generally, the situation needs to be immediate, for example – another person in the car needs urgent medical attention. There is no limit to the situations in which the defence can apply, but it needs to be an emergency so immediate that driving while a drug was present appeared to be the only option. Obviously, feeling extremely hungry and needing to do a Macca’s run is not going to cut it!

 

Identification

In a very rare case, it may be possible someone else convinced police he or she was you and police charged someone according to your details and believing it was you.

 

There was not a drug present

This is another difficult defence to run, because once police have a certificate confirming a relevant drug is in your saliva, the only way to disprove that is to get a different expert to say the analysis is wrong.

 

You were in the car, or near the car, but were not going to drive

Police can charge you with being ‘in charge’ of a motor vehicle while a drug was present, that is, you weren’t driving, but you had the potential to drive.

This is different from being charged with actually driving.

The law gives you defence in such a situation, which is:

‘(6)Court not to convict if satisfied of particular matters
If on the hearing of a complaint of an offence against subsection (drug driving) in respect of a motor vehicle the court is satisfied beyond reasonable doubt by evidence on oath that at the material time—

(a)the defendant—

(i)by occupying a compartment of the motor vehicle in respect of which the offence is charged other than the compartment containing the driving seat of that motor vehicle; or

(ii)not being in that motor vehicle, by some action;

had manifested an intention of refraining from driving that motor vehicle while any of the following circumstances relevant to a conviction on the complaint applied—

                             …            

v)there was a relevant drug present in the defendant’s blood or saliva; and

(b)the defendant—

(i)was not under the influence of liquor or a drug to such an extent; or

…

as to be incapable of understanding what the defendant was doing or as to be incapable of forming the intention referred to in paragraph (a); and

(c)the motor vehicle in respect of which the offence is charged was parked in such a way as not to constitute a source of danger to other persons or other traffic; and

(d)the defendant had not previously been convicted of an offence under subsection (drink driving and drug driving offences) within a period of 1 year before the date in respect of which the defendant is charged;

The court must not convict the defendant of the offence charged.”

 

If you are charged with being ‘in charge’ of a motor vehicle while a drug was present, let us know and we can examine if you have this possible defence available.

 

Will I need an interlock?

No, not for drug driving offences.

 

What can I do to prepare for my court date?

We, naturally, recommend you contact us and get legal advice. Getting some character references helps, and if you have history for similar offending, participating in the Queensland Traffic Offenders Program can also help. You would want to make sure you do not drive by yourself to court as, unlike NSW, there is no possibility of getting an outcome that will not disqualify your licence.

 

Can I get a work licence?

This is a possibility for this offence. There are a couple of pre-conditions, however:

1.       You cannot have been disqualified or suspended within 5 years before the offence (except SPER suspension),

2.       You must have had an open licence when the offence was committed,

3.       You must genuinely need your licence for work, and no other reason.

You can find more detail on the subject of work licences here.

 

How can Clarity Law help me?

While many people decide to go to court without a solicitor, this is a roll of the dice.

Clarity Law can help you in the following ways:

• We know the magistrates well. Fair or not, the magistrate and how he or she is handled can make a big difference to the outcome,
• We are experts in traffic law. We may be able to identify issues you would not have considered and bend them in your favour in court. We are also much more likely to provide a comprehensive service compared to a law firm that only does traffic law occasionally,
• We are experienced advocates. To most people, public speaking is an alien and feared event. For us, however, this is something we do multiple times per week. We know how to structure your case and deliver it in court for the most advantageous outcome.
• You will get out of court early. With a solicitor by your side, you will be able to be one of the first people to have his case dealt with, rather than one of the last.You are our focus. We help people just like you all the time. We appreciate your money and time are important to you, and we make every effort to ensure you properly understand your rights, and that you are treated with curtsey and respect.

How do I get more information or engage you to act for me? 

If you want to engage us or just need further information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you
2. Call us on 1300 952 255 seven days a week, 7am to 7pm
3. Click here to select a time for us to call you back
4. Email steven@claritylaw.com.au

We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about drug driving. You won’t be chased or hounded to engage us.  Remember its critical you get advice before going to court, a drug driving charge no matter the reading will have an impact on you, your family and your employment or business.