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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Drug Driving


This offence is the most serious drug driving offence. The main difference between this offence and the other drug driving offences is the level of impairment. The offence of driving under the influence of a drug requires a level of actual impairment, to the extent where you are incapable of having proper control of the motor vehicle.

In assessing your level of impairment, the police will undertake an impairment test. This does not involve ascertaining the precise level of drug/s in your system but the physical effects the drugs have had on your ability to properly control a motor vehicle. Police can require you to take in a drug impairment assessment if they believe you are impaired by a drug other than alcohol, based on your behaviour or appearance. Police can require you to accompany them to a police station or other place for the assessment.

Penalties

Driving While Under the Influence of a Drug
Maximum Fine Maximum Imprisonment Minimum Licence Disqualification
First Offence 25 penalty units 3 months 2 years
Second 120 penalty units 12 months 4 years
Third or subsequent offence 180 penalty units 18 months 4 years

When Can Police Require You To Undergo A Drug Impairment Test?

Police can require you to undergo an impairment assessment if they believe you are impaired by a drug and they:

  • found you driving or in charge of a motor vehicle;
  • intercepted you at a preliminary breath testing site;
  • believe on reasonable grounds that you were driving a motor vehicle within the past three hours and it was involved in an accident (if the police have not been able to establish who was driving a such a motor vehicle, they can also require you to undergo an assessment if you were a passenger in the vehicle);
  • required you to undergo a preliminary breath test; or
  • required you to provide a sample of breath for a breath test.

What Does The Impairment Test Involve?

There are four components to an impairment test. The test will be video recorded and you will be required to:

  • be interviewed by the assessing officer about your driving, interception by police, illnesses, injuries, medical history, and drug use;
  • undergo an eye examination and eye movement test;
  • walk nine heel-to-toe steps, about face and return; and
  • balance on one leg, then the other.

What Is A “Drug”?

A “drug can be any drug other than alcohol. The drug does not need to be an illegal drug; it includes prescription and over-the-counter medication.

What Actions Might Constitute Driving While Under The Influence Of Alcohol And Drugs?

“Driving” includes being “in charge” of a motor vehicle. This means that even if you are not actually “driving”, you can still commit the offence if you are “in charge” of the motor vehicle. An example of this could be if you were pulled over on the side of the road with the keys in the ignition, even if the engine is not running.

What The Police Must Prove

To prove this offence, the “police must prove beyond reasonable doubt that:

  • you were driving or in charge of a motor vehicle; and
  • at the time you were driving or in charge of the motor vehicle you were impaired by a drug “…to such an extent as to be incapable of having proper control of the motor vehicle…”.

Possible Defences For Driving While Under The Influence Of Alcohol And Drugs

The defences for this charge are largely technical in nature and relate to the procedure followed by police when administering the impairment test. If the police did not follow proper procedure then the impairment test cannot be used as evidence in court.

Another defence might be if your apparent impairment was due to a medical condition or a disability and was not due to a drug of any type.

Which Court Will Hear Your Matter?

If you are charged with this offence, your matter will be heard in the Magistrates’ Court.

For advice or representation in any legal matter, please contact Armstrong Legal.

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