Will I Lose My Licence for Drug Driving in Victoria? Your Questions Answered

The article

is written by Dee Giannopoulos, Director, Doogue + George Defence Lawyers.

Dee is a solicitor advocate based at our Melbourne office. She is an expert in pre-charge strategies as well as in matters involving significant amount of infringements.

Dee’s excellence in the field has led to many of her clients being interviewed but not charged. She is recognised as a Recommended Criminal Defence Lawyer in the Doyle’s Guide 2024 and is a member of the Young Lawyers Section of the Law Institute of Victoria.
 

What counts as ‘drug-driving’?

A number of offences listed under s49 of the Road Safety Act 1986 (Vic) deal with drug-driving, including:

• Driving while under the influence of alcohol or any drug to such an extent as to be incapable of having proper control of the motor vehicle [s.49(1)(a)].
• Driving while impaired by any type of drug [s.49(1)(ba)].
• Driving when your saliva or blood contains any trace amount of illicit drugs [s.49(1)(bb), 49(1)(h) and 49(1)(i)].

What can be detected and for how long?

Police use a saliva testing device called DrugWipe® to test for certain illicit drugs. These include cannabis, methamphetamine (ice) and ecstasy (MDMA). According to manufacturers, saliva tests will detect cannabis (D9-THC) up to 10 hours after use whilst ecstasy (MDMA) and methamphetamine (ice) can be detected up to 24 hours after use. A blood test may be taken if a person has been involved in an accident or is noticeably impaired. Blood tests have slightly narrower windows for detection with up to 6 hours for cannabis (D9-THC) and 20 hours for ecstasy (MDMA) and methamphetamine (ice). It is a separate offence to refuse to undertake a test if a police officer is legally permitted to request you to take one.

What about other drugs?

You can still be found guilty of a drug-driving offence for other drugs (including prescription drugs) if police believe you were impaired by a substance whilst driving or in control of a vehicle. Police will give you a drug impairment assessment to determine if you are impaired. An impairment assessment generally involves performing certain coordination tasks, which are video-taped for evidence purposes. If a police member concludes you are impaired you may be required to undertake a blood or urine test for drugs. It is a separate offence to refuse to comply with a drug impairment assessment.

Can I fight the charge?

There are only a limited number of defences available for drug-driving charges, but could arise if there is evidence that:

• You were not driving or in control of the vehicle at the time.
• You did not knowingly consume the drugs detected.
• There was an error in the device used.
• Impairment was the result of taking prescription drugs in accordance with doctor’s instructions.
• Police failed to follow appropriate procedures when conducting a test.

Will I Go to Jail?

It is highly unlikely that a first-time drug driving offence will result in a term of imprisonment. However, subsequent offences may increase the risk. The most common penalty for a drug-driving offence is a fine along with a period of license suspension or disqualification. Under the law, fines are listed as ‘penalty units’, at the time of writing 1 penalty units is equal to $165.22. The maximum penalties for driving under the influence [s.49(1)(a)] are:

• 25 penalty units or three months imprisonment for a first offence.
• 120 penalty units or 12 months imprisonment for a second offence.
• 180 penalty units or 18 months imprisonment for all subsequent offences.

The maximum penalties for driving while impaired by any type of drug [s.49(1)(ba)] are:

• 12 penalty units for a first offence.
• 120 penalty units or 12 months imprisonment for a second offence.
• 180 penalty units or 18 months imprisonment for all subsequent offences.

The maximum penalties for driving when your saliva or blood contains any trace amount of illicit drugs [s.49(1)(bb), 49(1)(h) and 49(1)(i)] are:

• 12 penalty units for a first offence.
• 60 penalty units for a second offence.
• 120 penalty units for all subsequent offences.

All people convicted of a drug-driving offence must also complete a Drug Driver Program Behaviour Change Program.

Will I Lose My License?

If you are convicted of a drug-driving offence your license will be suspended or disqualified for some period of time. Unfortunately, it is mandatory for a Magistrate to impose some period of either suspension or disqualification on your license. A suspension of your license means you cannot drive during a certain period of time, but you can drive once the period ends. A disqualification means your license is cancelled and you cannot re-apply for a license for the disqualification period. You must return your license to VicRoads. Most drug-driving offences require immediate disqualification of your driver’s license upon conviction. The period of disqualification will be:

• 2 years for a first offence and 4 years for a subsequent offence for driving while under the influence [s.49(1)(a)].
• 12 months for a first offence and 2 years for a subsequent offence for driving whilst impaired by any type of drug [s.49(1)(ba)].
• 6 months for a first offence and 12 months for a subsequent offence for driving when your saliva or blood contains any trace amount of illicit drugs [s.49(1)(bb), 49(1)(h) and 49(1)(i)]

If you received an infringement notice or “on the spot” fine for drug driving, your licence may be suspended instead of cancelled. Serious offences apply to driving whilst suspended or disqualified.

How Do I Get My License back?

If your license has been cancelled for a drug-driving offence you will need to apply to the Magistrates’ Court to get a Licence Eligibility Order before VicRoads can reissue your licence. You can only obtain a Licence Eligibility Order after your period of disqualification has ended. You will need to organise a Licence Eligibility Order court hearing, where you will be asked a number of questions by a Magistrate who will decided whether to issue the order. You may need to supply a number of documents to the Court including evidence of completion of a relevant behaviour change program, relevant medical reports and a record of your driving history. If an order has been made you will then need to visit a VicRoads Customer Service Centre to have your license reissued. You will need to supply:

• A copy of the License Eligibility Order.
• A certification of completed from a behaviour change program.
• Evidence of identity.
• Payment for the license.

Will I have a Criminal Record?

Unfortunately, all findings of guilt for drug-driving offences in the Magistrates Court will come up in a police check. — Still have some burning questions? Our lawyers are drug-driving experts, get in touch! Date Published: 21 February 2020