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If you have been charged with a drug driving offence in Brisbane, the consequences are severe, and your licence is already at risk. The drug driving laws in Queensland have mandatory penalties that include licence disqualification, fines, and a criminal conviction that can affect you for years to come. How your case is managed in the next few weeks can really count in achieving a better outcome.
Our drug driving lawyers in Brisbane have years of experience in dealing with drug driving charges in Brisbane and throughout South East Queensland. We know the law, we know the process, and we know what it takes to achieve a better outcome and keep you on the road. If you need advice on your options, we invite you to book a free consultation, and we will advise you exactly where you are.
Two Types of Drug Driving Charges in Queensland
There are two types of drug driving charges in Queensland, and the difference in these two charges is important as the penalties, defences, and prosecution requirements differ for both charges.
Driving with a Relevant Drug Present in Saliva or Blood
This is the more common charge. If the saliva test detects the presence of a relevant drug in your system, then you can be charged with the offence of driving with a relevant drug present in the saliva or blood under section 79(1) of the Transport Operations (Road Use Management) Act 1995. It is not necessary to prove that you were actually impaired by the drug.
All the prosecution has to prove is the presence of the relevant drug in your saliva or blood at the time of the offence. It is irrelevant whether or not the relevant drug made you feel like driving or whether or not the relevant drug had any effect on your ability to operate a motor vehicle.
Driving Under the Influence of a Drug
This is the more serious offence, as defined in section 79(2) of the aforementioned Act. In this case, the prosecution has the burden of proof that a drug, in fact, impaired your ability to drive. The police usually base their decision on information obtained from the arresting officer, such as observations of erratic driving, slurred speech, dilated eyes, or poor coordination, as well as the results of a blood test.
This charge is harder to prove, as the prosecution has to show impairment rather than the presence of a drug. However, if the charge sticks, the penalty is much worse. The court views driving under the influence as a serious offence, and the sentence is commensurate. Both offences are fully contained in the Transport Operations (Road Use Management) Act 1995.
Penalties for Drug Driving in Brisbane
The penalties that are enforced on the individual depend on whether it is a first-time offence or not, as well as the charges that are pressed.
First Offence Penalties
For the first offence of driving with a relevant drug present, the maximum penalty is 14 penalty units, which is $1,652.40, along with the disqualification of your licence. The minimum disqualification period is one month, although three months is the standard disqualification period for a first-time offender.
For the first offence of driving under the influence of a drug, the maximum penalty is 28 penalty units, along with a maximum of nine months of imprisonment. The minimum period of licence disqualification is six months, although the courts take this offence seriously, even for first-time offenders, and the conviction will end up on your criminal record.
In either case, the length of the sentence that the court imposes depends on your traffic history, your driving history, as well as whether you have any previous drink driving offences.
Repeat Offence Penalties
If the driver is found to commit the same offence of driving with the relevant drug present in the second or later instance, the driver faces the same penalty as before, but with the fine doubled and the disqualification extended. The driver can also face disqualification of the licence by the court for up to twelve months and can also face jail time, which the magistrate will seriously consider.
If the driver is found to commit the offence of driving under the influence of drugs or any other substance more than once, the driver faces the same penalty as before, but with the fine increased to 60 penalty units or 18 months of jail time, with the minimum disqualification of twelve months. If the driver also has drink driving offences against him or her, the court will consider this as a pattern and act accordingly.
Disqualified Driving compounds the situation further, as the driver faces jail time, as this is also considered a criminal offence by the court. The court can act within the framework of the Penalties and Sentences Act 1992.
What Drugs Does Queensland Test For at Roadside
The three main drugs that are targeted in Queensland roadside drug testing are THC, which is an active constituent of cannabis; methylamphetamine, which is known as ‘ice’ and ‘speed’; and MDMA, which is known as ‘ecstasy.’ These are the only three that are screened with an oral fluid screening device at roadside testing stations.
This means that cocaine, heroin, benzodiazepines, etc., will not produce a positive result on a roadside screening. Nevertheless, if police suspect that you are impaired by any drug, not just those on the standard screening list, they can ask that a blood sample be taken at a hospital or police station. The blood sample can then pick up a much broader range of drugs.
So while the roadside saliva test is limited to the three aforementioned drugs, a drug driving charge is not limited to those three. In other words, any drug that impairs your ability to drive can be the basis of a driving under the influence charge, provided the police opt to conduct a blood test.
How Roadside Drug Testing Works in Brisbane
Brisbane sees regular roadside drug testing operations, especially on major corridors such as the M1 and Gateway Motorways, and in entertainment areas such as Fortitude Valley and the CBD on Friday and Saturday nights.
When you are stopped at a testing station, a police officer will ask you to put a device on your tongue, and a saliva test will be carried out on the spot. The result of the test will be available in minutes. The legal authority for police to stop vehicles and carry out these tests is granted by the Police Powers and Responsibilities Act 2000.
If this initial test gives a positive indication, then the suspect is directed to a roadside test vehicle or to a police station to provide a second saliva test. This second test is then sent to the lab for analysis, and this is the evidence that is used to support the charge against the suspect. The preliminary test by itself does not provide enough evidence to convict the suspect.
The time period between when your licence is initially indicated as positive and when the lab results are confirmed can take weeks. Your licence is suspended immediately under an administrative suspension. You are not legally allowed to drive on the road until this is sorted out or until you apply for a restricted work licence.
Prescription Medication and Drug Driving Charges
This is the scenario that catches people off guard. You can be charged with a drug driving offence in Queensland even if the prescription medication you are taking was legally prescribed by your doctor.
Benzodiazepines such as diazepam (Valium) and alprazolam (Xanax) are some of the most common offenders. Opioid pain relievers like oxycodone and codeine-based drugs are another common offender. These drugs can inhibit your ability to drive, and if your blood is tested and found to contain these drugs as well as evidence of impairment, you will be charged with driving under the influence.
The fact that you have a valid prescription is not a complete defence. While it may be relevant in sentencing, it could help your lawyer argue that a lesser penalty is appropriate; it is not a defence. Queensland law is not concerned with whether you were legally entitled to take the drug, but whether you were fit to drive.
Where prescription medication cases get tricky is when it comes to knowledge and intent. If you were never told by your physician that you should not drive, or if you had recently started taking a certain drug and did not realise how it could impair your ability to drive, an experienced drug driving lawyer could work these circumstances to your advantage for leniency. Some people really do get caught unaware because they took their medication as prescribed and had no idea it could affect their driving abilities as much as it did.
If you are on prescription medication that has a warning label regarding drowsiness or impairment, it is recommended that you talk to your prescribing physician regarding driving and follow their advice. However, once you are charged, the concern becomes how we can present your situation in the best possible light to the court.
Keeping Your Licence After a Drug Driving Charge
Losing your driver’s licence after being charged with drug driving can have repercussions that extend far beyond the mere inconvenience of having to find alternative ways of getting from one place to another. For many of the drug driving charges that we deal with, the loss of licence is the part of the charge that does the most damage, particularly if you need the licence as part of your job.
There are two ways to get back on the road before the full disqualification period is over.
Restricted Work Licence Applications
A restricted work licence is one that allows you to drive at specific hours and on specific routes for work-related purposes. One is eligible to apply for a restricted work licence through the magistrates court during sentencing or shortly after.
In order to qualify, you must prove that your loss of licence will cause extreme hardship in your ability to make a living. This requires that you gather evidence from your employer that outlines your work hours and your work routes, as well as demonstrating that there is no alternative transport available. The court will also take into consideration your traffic record and whether or not you are a proper person to obtain a restricted licence.
The application has strict timeframes. If the timeframe is not met, the opportunity is lost. This is one of the main reasons that people seek the advice of a lawyer. Getting the restricted work licence application right the first time is important. You only get one chance.
Special Hardship Orders
A special hardship order is a broader form of relief, and it is available in certain circumstances. It differs from a restricted work licence in that, in addition to work, it can cover non-work driving in circumstances of extreme hardship.
The rules are stricter, and the applications are closely scrutinised by the court. You need to prove that the disqualification is causing hardship beyond the normal degree of inconvenience. Having an experienced lawyer help with the application is likely to improve your chances, as the court expects detailed evidence and a well-organised submission.
What a Drug Driving Lawyer Actually Does to Reduce Your Penalty
While hiring a lawyer for a drug driving charge may seem like just having someone stand next to you in the courtroom, the value of hiring a good drug driving lawyer is what happens in the weeks leading up to the court case.
The first thing to look at is the procedure followed by the police. Every drug driving offence relies on a chain of evidence, including the roadside stop, the initial saliva test, the confirmatory test, and the lab test, as well as the handling of samples at each stage of the process. If the procedure was not followed correctly according to the legislation, it may be possible to challenge the offence itself. An experienced traffic lawyer knows exactly what to look for, having witnessed the procedure hundreds of times and understanding where the procedure tends to go wrong.
The next step is to build your case for mitigation. This involves collecting character references from people such as your employer, family members, and community leaders who are familiar with your character and the consequences that a harsh sentence would have on your life. It also involves collecting evidence of any rehabilitative actions that have been taken since the charge, such as drug treatment and educational programs. The justice system is impressed with people who have taken steps to rehabilitate themselves.
Your lawyer will also draft written submissions that are presented to the magistrate. These are formal written arguments that present your situation in the most favourable light, with references to similar cases that have been dealt with lightly when the charges were the same. An experienced lawyer who has a good understanding of the magistrates courts in Brisbane knows what the different magistrates tend to listen to.
In some instances, your lawyer may be able to work out a deal with the prosecution before the hearing. This is especially true if there is questionable evidence or other problems with the case. In these instances, the prosecution may be willing to drop the charge. While this does not often happen, when it does, it could mean all the difference.
For anyone considering whether or not to represent themselves or get professional legal representation, the decision comes down to risk. The stakes in terms of the penalties for drug driving, including the risk of losing your licence, getting a criminal record, and facing financial penalties, are high enough that having drug driving lawyers on your side is not a luxury; it’s a necessity.
How Our Team Prepares Your Drug Driving Defence
The entire process from the first time you speak with us follows a specific structure.
Firstly, we look at the police evidence, your charge sheet, and circumstances of your initial stop. This includes looking at how the test was conducted, how long it took, and whether it was all done by the book. If there was a flaw in the prosecution’s evidence, we would spot it here.
We then sit down with you (in person or by phone) and go through your personal circumstances, your job, your family situation, your driving history, and what a conviction or disqualification would mean to your day-to-day life. This is your mitigation case.
From there, everything the court needs to see is prepared. The character references are written with guidance to actually say something relevant to the magistrate’s concern. If rehabilitation is complete, then evidence of that is also collected. If a restricted work licence or special hardship order is necessary, then that is also prepared at the same time to avoid waiting until the last moment.
On the day of your court date, your lawyer takes care of all the appearances in court. You’ll know just what to expect ahead of time, including what the magistrate is likely to ask, what the prosecution is likely to say, and how we’re likely to respond. There are no surprises.
Our traffic lawyers are experts in dealing with drug driving charges in Brisbane, the Gold Coast, the Sunshine Coast, and throughout south-east Queensland. We are familiar with the local courts, and being known by the local bench and prosecution team is another advantage that you will not find in a general practice.
Fixed Fees and Payment Plans for Drug Driving Cases
The cost of legal fees is a legitimate concern when you are already stressed by the situation, not to mention the possibility of losing money if your licence is suspended. We have a fixed fee that we charge upfront for every drug driving case, so you know exactly what we are going to charge before we even get started.
We know that sometimes people may not have the money upfront, which is why we have payment plans that allow you to pay the fee in instalments. The payment plan is worked out before your court case, so the cost is not an excuse not to get legal representation.
Want to know what your case is going to cost? Give us a call today, and we’ll give you a quote on the spot.
Book a Free Consultation with Our Brisbane Drug Driving Lawyers
If you are charged with a drug driving offence in Brisbane, you are already under pressure to meet deadlines for obtaining a work licence and to attend court. The sooner you seek expert advice, the more options you will have.
We will discuss your charge, the potential consequences you may face, and honestly advise you whether you will benefit from engaging a lawyer to represent you. If we can assist you, we will give you a fixed fee quote and get to work immediately.
Frequently Asked Questions
How long after using a drug can I still test positive on a roadside saliva test?
The detection window varies according to the substance. THC has a detection window of several hours up to 12 hours or longer after taking the drug, depending on the frequency of the drug taking and the individual’s metabolism. The detection window of methylamphetamine and MDMA is 24 to 48 hours.
Can I be charged with drug driving the morning after using a substance?
Yes. If there is drug residue in your saliva or blood, you can be charged even if you used the drug the night before. Morning-after charges for drug driving are common for cannabis and methamphetamine. The law does not require that you have used the drug recently. It simply has to be there when you drive.
Will a drug driving conviction show up on a criminal record check?
Yes, it does. A drug driving conviction is a criminal offence in Queensland, and it will show up on a criminal history check, which may have implications for employment, professional registration, insurance, and international travel, especially if the person wants to go to the United States, as they ask about criminal convictions on visa applications.
What happens to my licence between being charged and my court date?
In most cases, your licence is suspended immediately after returning a positive drug test at a roadside stop. The suspension remains in force until your case is heard in court, unless you are granted a restricted work licence in the meantime. The waiting period between being charged and your court date can be lengthy.
Can I still apply for a work licence if I hold a provisional licence?
The eligibility criteria for a restricted work licence when one is already in possession of a provisional licence depend on individual circumstances as well as the nature of the charge. The criteria are more stringent when one is in possession of a provisional licence, but it is always advisable to seek legal advice on this issue.
What should I say if the police ask whether I have taken any drugs?
You are not obliged to make any statements concerning the intake of drugs beyond the need to provide your name, address, and licence information to the police officer. Whatever you say to the police officer can be used against you as evidence. It is best to be courteous and say as little as possible regarding the drugs you may or may not have consumed. It is best to talk to a qualified lawyer before making any statement.