The Controversial Drug Driving Laws in NSW

To be guilty of DUI under section 112, the police only need to prove that you were under the influence of drugs or alcohol at the time of driving, the law doesn’t require proof that your driving skills were effected by drugs or alcohol.

Under the current law in NSW, you can therefore be guilty of DUI and face heavy penalties with significant consequences where you are under the influence of drugs/alcohol although there is no evidence that your driving skills and road safety is affected. This is what the case of DPP (NSW) v Kirby [2017] NSWSC says.

There needs to be no evidence as to the extent of your intoxication from drug/alcohol in order for the court to find you guilty to this, so long as there is enough evidence to establish that you were under the influence at the time of driving.

This is different to the categories of drink driving laws which impose penalties based on the extent of your intoxication to reflect the extent of concern for road safety.

In an purported effort to increase road safety, the law under section 111 of the Road Transport Act 2013 criminalises drivers having the mere presence of an illicit drug in the saliva, urine or blood without any evidence of being under the influence or being impaired from driving from an illicit substance.

Driving with the mere presence of a prescribed illicit drug in your oral fluid, blood or urine under section 111 carries a drug driving conviction, penalties of up to $1,100 and a 6 months automatic driver licence disqualification.

2013 to 2015 data shows that “drugs other than alcohol were detected in association with motor vehicle fatalities. Psychotropic drugs such as antidepressants were the most commonly detected, followed by hallucinogens such as cannabis. Opioids were detected on just seven occasions”.

The NSW Government has now introduced further controversial changes to drug driving laws and the penalties on using a mobile phone when driving.

The New Drug Driving Laws

DUI laws have changed to now include prescription and non-prescription drugs, including pharmaceutical drugs that can be obtained over the counter, including drugs containing codeine, diazepam.

The new laws on drug driving have now expanded to include legal and illegal drugs.

To be guilty of driving under the influence of a prescribed or non-prescribed drug there must be evidence that you were under the influence of it at the time of driving. To prove that you were under the influence, an expert is not necessarily required.

Being under the influence can be proven by observations from other witnesses, including police officers as to your behaviour, slurred speech, shaking hands and manner of driving at the time.

The manner of driving can therefore be relevant for the Magistrate or Judge to determine whether you were under the influence of alcohol or drugs at the time of driving, but it’s not necessary to also establish that at the time of driving you were incapable of properly driving or controlling the car.

These laws are said to have been inspired by the death of home and away actress Jessica Falkholt and her family in a horrific crash in 2017 after a man reportedly drove onto the opposite side of the road crashing into the car the actress was in. The man was driving after leaving a methadone clinic.

Chief Health Officer Dr. Chant says that prescription and non-prescription medications can impair driving skills, especially when mixed with alcohol. New resources are being developed to assist patients be more aware of this. The problem with our current law appears to be, that the law doesn’t target the extent that one is under the influence of alcohol or medication.

According to law, being under the influence of medication or alcohol doesn’t necessarily mean that one is actually impaired in driving ability. Perhaps the law needs to change to a focus onto this, similar to the different categories of drink driving to reflect the extent of danger according to the extent of alcohol in your breath or blood to determine the extent of impairment in your ability to drive.

Melinda Pavey, NSW Minister for Roads Maritime and Freight said that there will be “clearer guidance on when doctors should report a patient to a driver licensing authority if they have concerns”.

What are the Penalties for Driving Under the Influence?

The offence of driving under the influence of alcohol or drugs carry heavy penalties, including a criminal conviction, automatic 3 years driver licence disqualification, a fine of up to $3,300 and a term of imprisonment of up to 18 months. There are heavier penalties than this if this is considered your second or subsequent DUI offence within the last 5 years. This is reflected in section 112 of the Road Transport Act 2013.

A licence disqualification to most people will have disastrous consequences on maintaining a job, earning an income that dependants rely on, and maintaining personal responsibilities that others rely on.

The only way to avoid a driver licence disqualification is if the Court imposes a non-conviction as a type of penalty on a plea of guilty. This is commonly known as a section 10, but with the new laws on sentencing it will now be replaced with a Conditional Release Order (CRO).

The New Laws on the Use of Mobile Phones When Driving

The NSW Government has now introduced new laws increasing the penalty for the use of mobile phone while driving from 4 demerit points to now 5 demerit points under rule 300 of the Road Rules 2014 (NSW).

The penalty increase is now considered the toughest demerit point penalty for this kind of offence in all of Australia.

Melinda Pavey, the NSW Minister for Roads, Maritime and Freight believes that the increase in demerit points penalty for this offence will deter driver’s from driving while using their mobile phones.

Arguably, this will not be an effective measure.

What is the Fine for Using Mobile Phone While Driving?

Driving while using a mobile phone also carries an on the spot penalty of $337. However, electing to go to court will allow the Magistrate to impose a maximum penalty of up to $2,200 fine in addition to the 5 demerit points.

How to Defend and Contest a Fine for Using a Mobile Phone While Driving

In NSW, you will be guilty of using a mobile phone while driving if the police can prove each of the following elements of the offence:

  1. While you were driving a motor vehicle, you used a mobile phone; and
  2. You did that while the vehicle was moving, or stationary (but not parked).

“using a mobile phone” includes:

  • Holding the phone in your hand even if you were not using its functions
  • Entering something into the phone
  • Looking at something in the phone
  • Turning off the phone
  • Operating any of the phone’s functions

You will be not guilty if any of the below defences to using a mobile phone when driving apply to you:

  • When using your mobile phone, your vehicle was parked after stopping your car and allowing it to stay (even if you remain seated in the car).
  • You use your mobile phone while it’s secured in a mounting affixed to the vehicle
  • You use your mobile phone without it being secured in a mounting affixed to the vehicle, and where it’s not held by you, but you’re able to use the phone without touching any buttons on the phone. (Bluetooth).
  • Where you use your mobile phone as a visual display unit where the phone is secured in a mounting affixed to the car.
  • You use a mobile phone while driving an emergency or police vehicle.
  • Where your mobile phone automatically receives a text message, email, video message or other communication on it if that communication itself doesn’t actually become automatically visible on the screen.
  • Your mobile phone is located in your pocket or pouch worn by you.

Even if you are found guilty or plead guilty for using a mobile phone when driving by the Magistrate in court, you can avoid incurring the demerit points if the Court decides to not impose a conviction- commonly known as a section 10, but now replaced with a conditional release order (CRO).

Published on 20/07/2018

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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