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What you need to know about “Drug Driving”

07 Jul 2015

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  • Criminal Law

The current ACT drug driving legislation does not actively target persons who are impaired in the same way that drink driving laws target those whose alcohol intake impairs their driving.  Zero tolerance laws were introduced for drug driving in 2011, and at that time concerns were raised relating to motorists who may be caught by these provisions who were impaired in any way by the drug, or had accidently or innocently ingested the substance.  Although there is no doubt that road safety is something that needs to be taken seriously and a no tolerance approach should be taken  to drink driving / drug driving,  all punishment should be reflective of the circumstances of the crime committed, and the objective of the legislation.

The anomaly in the current ACT legislation is that it imposes an offence upon motorists who are found to have any level of a controlled substance in their system.  This routinely includes victims of motor vehicle accidents, who were hit by another driver through no fault of their own, and which arises due to compulsory blood samples taken on admission of hospital.

On 25 June, Magistrate Morrison in the ACT Magistrates Court heard a matter where an unimpaired motorcyclist, who was catastrophically injured by colliding with a four wheel drive in a motor vehicle accident, was later charged over a cannabis trace in his blood.  In court, it was stated that the man was not a habitual user of cannabis and had advised he shared ‘1 joint’ of cannabis several days prior to his motor vehicle accident.  According to Drugaware.com.au, a single ‘joint’ can be detectable 5-7 days in a person’s blood, and for heavy cannabis use it can be detectable for 60-90days. Though the evidence was that the trace in this case played no part in the accident and the motorcyclist was not at fault in any way. Fortunately, the driver was legally represented, and the Criminal Law team at Snedden Hall & Gallop made a successful submission for a section 17 non conviction order to be granted, given the exceptional circumstances. This meant that no conviction was recorded for our client.

However in normal circumstances, the ACT Magistrates court is confined by the wording of section 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT).   Unlike drink driving offences, the Court does not have access to a scale of penalties to apply to drivers who are found to have a ‘controlled drug’ in their system.  Strict liability applies to the extensive list of items in the ‘controlled drug’ list.  These include some ‘legal’ medical drugs such as ketamine, which have legitimate medical uses. There are no ‘Level 1,2,3,4’ drink driving range penalties to reflect the degree to which the driver is ‘impaired’, or heavier penalties for those persons who are strongly under the influence at the time of driving. Persons who are not impaired in any way by  the influence of the drug at the time of driving, but only have remnants of the substance in their system are treated with the same brush as the fully impaired, due to minimum license suspension provisions.  A trace of a controlled drug from use days prior, may result in criminal charges, with little sentencing options from the Court, and future incapacity to travel overseas, or to gain employment due to the criminal conviction.  However on 30 June an unrepresented driver, charged with drug driving was convicted by Special Magistrate Doogan, fined $700.00, disqualified from driving for 9 months, and ordered to pay court costs, even though he had also allegedly been unimpaired at the time while driving.

The current maximum penalty for a drug driving conviction for a ‘first time offender’ is a $1,500.00 fine and 3 year driving disqualification period (which can be reduced to a minimum 6 month period).  The maximum penalty for a ‘repeat offender’ is 3 months jail, a fine of $3,750.00, and 5 years driving disqualification period (which can be reduced to a minimum of 12 month period). In circumstances where a person is in the unfortunate position where they have previously had even a low level drink driving offence, and years later they are hit by a negligent driver, they could be dealt with as a repeat offender facing a minimum 12 month loss of license to a maximum of 5 years without driving, and potential jail time, if they had any trace of a controlled drug in their system.

There is an ongoing debate within the community regarding the effective use of drug driving legislation, and whether a fairer system should exist to deter impaired drivers, and still deal fairly with persons who have low or no levels of impairment.

Another recent Canberra Times article dated 2 July 2015 quoted Canberra-based social scientist David McDonald whose views are that the current zero-tolerance method is now out of date. Mr McDonald stated that the zero-tolerance method is expensive and time consuming to enforce and has been superseded by an impairment-focused approach in many European countries, including England.

A review of this legislation is suggested to achieve the goal to ultimately protect the community from impaired drivers, and avoid court/community resources being used to prosecute citizens who have mere trace amounts of controlled substances in their system.

The Canberra Times has recently published an interesting editorial here.

If you have been charged under these laws, or have any concerns that you wish to raise with a lawyer, please contact our Criminal Law team today.