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Use of Prohibited Drugs

In New South Wales it is an offence to use prohibited drugs.  While drug possession and supply offences are substantially more common charges, and in some cases easier for police to prove, there is a separate offence that a person can be charged with if they use or attempt to use prohibited drugs.

The offence is referred to by police and courts as ‘self-administration of a prohibited drug.’ A person can be charged with this offence if they swallow, snort, inject, smoke, ingest or otherwise consume prohibited drugs. They can also be charged if they are caught attempting to do any of these things.

The maximum penalty for this offence is 2 years imprisonment or 20 penalty units. This is the same penalty as for the offence of Possess Prohibited Drug.

The Offence of use Prohibited Drug

Under the legislation, the offence of Use Prohibited Drug is referred to as ‘Self-administration of prohibited drugs’. It is contained in section 12 of the Drug Misuse and Trafficking Act 1985 (NSW) and states:

  • A person who administers or attempts to administer a prohibited drug to himself or herself is guilty of an offence.
  • Nothing in this section renders unlawful the administration or attempted administration by a person to himself or herself of a prohibited drug which has been lawfully prescribed for or supplied to the person.

What Actions Might Constitute use Prohibited Drug?

Examples of using a prohibited drug include:

  • Admitting to police that the cigarette you’re smoking is marijuana;
  • Being found by police about to inject the syringe containing heroin into the inside of your left elbow, below the tourniquet you’re wearing;
  • Smoking ice and posting a video on facebook of you preparing, burning and then inhaling the drug;
  • Being found in a bathroom of a nightclub by police having snorted only half the line of cocaine you’d prepared for yourself; or
  • Being stopped by police for the purpose of a lawful search, grabbing the small bag of MDMA caps you have in your pocket and attempting to swallow.

What the Police Must Prove

To convict you of Use Prohibited Drug the prosecution must prove each of the following matters beyond a reasonable doubt:

  • That you administered or attempted to administer a substance;
  • That substance was a prohibited drug; and
  • That you administered or attempted to administer the substance to yourself.

Possible Defences

The most common ways to defend this charge are:

  • To argue that the substance was not a prohibited drug;
  • To show that you have a lawfully obtained script for the drug; or

Which Court Will Hear Your Matter?

The offence is a Summary Offence and can only be finalised in the Local Court.

The Dangers of Completing a Written Notice of Pleading

The form seems straight forward and can seem to be an attractive alternative to attending court in person. However using them can be a very bad idea.

It is important to be wary of Police that convey to you that they you can simply complete the written notice instead of attending court. While technically true, it is not advisable. Not only does it reflect poorly on you but you can be convicted and sentenced in your absence with little chance to advocate your case. Read More >

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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