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Drugs, driving and you

What to do when pleading guilty to drug related driving charges in the Local Court

Have you been charged with a drug related driving offence?

Things you should know

The two most common drug-related driving charges are

  • 'Driving under the influence of a drug'. To be charged with this offence you must actually be affected by the drug.
  • 'Driving with an illicit drug present in oral fluid, blood or urine'. For this offence the drug only needs to be detected in your system. You can commit the offence even if you are no longer affected by the drug.

You can also be charged with refusing to be tested.

In NSW police often do roadside testing of drivers for drugs. They use a saliva swab and drug-screening equipment. If this first test is positive, you will need to do a second swab at a mobile drug bus or a police station. The second sample is sent to a laboratory for analysis.

Drugs can be detected in your system for a long time after you use them. How long they stay in your system can depend on the type of drug, how much you took, how often you use it, and other personal factors.

How should I prepare for court?

Get character references

Written references from people who can talk about your good character may help your case. They should be addressed to the magistrate, and the people writing them should say they know about the charges you are in court for.

For more information see the Legal Aid NSW brochure called Character References.

Write down what you want to say to the court

Write a letter to the magistrate, or make notes of what you will say in court. The court will consider what you say when it decides what penalty to give you.

You should cover these things:

  • If you believed you were under the influence of a drug when you drove.
  • If you were stopped by a random test or because you were driving erratically or dangerously.
  • How long you had been driving for (or intended to drive for) when you were stopped.
  • How many people (passengers, members of the public) were put at risk by your driving.
  • If there was an accident.
  • If not having a licence will affect your employment or other people who rely on you (for example, children, sick relative).
  • If you don't have other transport you can use.
  • How long you had a licence and what your overall driving record is like.
  • If you are a regular drug user and it would be appropriate for you to get some kind of treatment or counselling for your drug use.
  • any special reason you were driving
  • why you were driving with drugs in your system
  • that you understand the risks or of driving after using drugs, and if you can, that you will not repeat this behaviour
  • if you need a licence for work-get a letter from your employer to say what will happen to your job if you are disqualified from driving for a long time
  • what your weekly income and expenses are (this will help the court work out any fine it gives you)

What should I do at court?

  • You should not drive to court in case you lose your licence. Take your licence with you (unless the police have already taken it) because the court may tell you to hand it in.
  • When you get to court, find the court officer and tell them that you are unrepresented and that you are pleading guilty. You can usually find them inside or just outside your courtroom.
  • If you want legal advice, find the Legal Aid NSW duty lawyer at court or ask the court to adjourn your case so you can get legal aid advice. You should see the duty lawyer if you think you could go to gaol.
  • Listen to what other people say to the magistrate while you wait for your name to be called. It can be helpful to sit in the courtroom and listen to other people presenting guilty pleas to give you a better idea of how to present yours.
  • The prosecutor will have a fact sheet which says why you were arrested and  what the police say happened. Make sure you read it. If you disagree with what the police say happened, you should get legal advice before you plead guilty.
  • The prosecutor should also show you a copy of your criminal record (if you have one) and a copy of your driving record. Read these documents to make sure they are accurate. The prosecutor will give them to the magistrate. If you think there is wrong information on your criminal or driving record tell the magistrate when it is your turn to speak.
  • The prosecutor will also hand the magistrate documents about the correct handling and testing of the sample and the presence of an illicit drug.
  • Speak to the magistrate when your name is called. Say you are pleading guilty and either hand your letter to the magistrate or read from the notes you’ve made. Give the court any written references and documents that you have to support your case.
  • Think about doing a Traffic Offender Program. If you attend the program and complete the coursework. your penalty may be reduced. If you want to do the program, ask the magistrate to refer you to one and adjourn

The MERIT program

Local Courts have a special program called the Magistrates Early Referral Into Treatment Program (MERIT). Adult defendants with drug problems can volunteer to work towards rehabilitation. on

The program takes about 12 weeks to complete. You can ask the magistrate to refer you to the MERIT program and adjourn your case so they can assess if you are suitable to take part in it. If you are, your case will be adjourned so you have time to complete the program.

The court will get a report about your progress. If you make positive progress on the program this will help you wen the court sentences you.

What could happen to me?

In most cases you will lose your licence for some time unless the court decides not to record a conviction against you. The penalties for some of the main drug related driving offences are set out in the table below.

The Penalties

Table showing penalties for main drug related driving offences.

What should I do after the court’s decision?

If there is something you don’t understand about the court’s decision, ask the magistrate to explain.

Do not drive while disqualified

If you have been disqualified from driving, you must hand in your licence. If you drive you can go to gaol for up to 6 months or be fined $3,300 fine (or both). If it is not your first offence, you could go to gaol for up to 12 months and be fined $5,500.

You will also be disqualified from driving for at least 3 months (or 6 months if this is not your first offence) when you are convicted for driving while disqualified.

Police can take away your vehicle for 6 months if you drive while disqualified three or more times in a 5 year period.

Since October 2017, some people can apply to the Local Court to ask for their disqualification periods to be removed from their driver licence. To find out if you can do this see the Legal Aid NSW brochure called Are you disqualified from driving? If you can apply, you must show that you haven’t committed any driving offences for either 4 years or 2 years—depending on what offences your licence was disqualified for. If you have ever been convicted of some

Re-apply for your licence

When your disqualification period is over, you must to re-apply for your licence. You will not get it back automatically. If you drive before you do this you could be charged with ‘driving while cancelled’. Contact Roads and Maritime Services (RMS) on 13 22 13 or visit www.rms.gov.au to find out how to get a new licence.

Pay your fine

If the court gives you a fine and you think you will have trouble paying it in the 28 days you have to pay it, speak to court staff before you leave about making a ‘time to pay’ arrangement.

If you don’t pay the fine in the time you are told to pay it, Revenue NSW can take other action against you. If you need help to manage your fines debt, contact Revenue NSW on
1300 655 805 or www.revenue.nsw.gov.au

You may be able to get a Work and Development Order (WDO) which allows you to clear up to $1,000 a month off your fines through approved activities or treatment programs. For more information visit
www.legalaid.nsw.gov.au/wdo

Can I appeal the court's decision?

You can appeal to the District Court if you are not happy with the magistrate’s decision, but you should get legal advice before you do this. You have 28 days from the date of the magistrate’s decision to appeal. You will also have to pay a fee. If you are on a Centrelink benefit or experiencing financial hardship—ask if the fee can be waived.

For more information about how to appeal, see the Legal Aid NSW brochure called Appealing to the District Court.

Also, if you had good reason for not being in court when the magistrate made the decision, you can apply to have the decision reviewed. For more information about this see the Legal Aid NSW brochure called Reviewing Local Court decisions.

Where can I get legal help?

LawAccess NSW

A telephone helpline that gives free legal information, referrals to other services and legal advice in some cases. Call 1300 888 529 or visit www.lawaccess.nsw.gov.au

Legal Aid NSW

You can get free legal advice, and in some cases, representation in court from Legal Aid NSW. To find your closest office call 1300 888 529 or look under ‘Get legal help’ at www.legalaid.nsw.gov.au

Legal Aid NSW will only represent you in some cases. We look at:

  • what you earn and what assets you own, and
  • if there is a real possibility that you could go to gaol, or
  • if there are ‘exceptional circumstances’. (You can find out what this means by looking at 1.13 of our Guidelines—see Policy Online at www.legalaid.nsw.gov.au)
  • If this is the first time you have been charged with a drug-related offence it is not likely you will go to gaol.
Aboriginal Legal Service (ALS)

If you are Aboriginal or Torres Strait Islander you can also contact the ALS for free legal advice. To find your closest ALS office call 1800 765 767 or visit www.alsnswact.org.au

This publication is a general guide to the law. You should not rely on it as legal advice, and we recommend that you talk to a lawyer about your situation.

The information is correct at the time of printing. However it may change. For more information contact LawAccess NSW on 1300 888 529.

© Legal Aid NSW 2017

Order brochures online at www.legalaid.nsw.gov.au/publicationsor email: publications@legalaid.nsw.gov.au

This brochure is also available in: Arabic, Dari/Farsi, and Simplified Chinese.

Do you need help to contact us?

If you need an interpreter, call the Translating and Interpreting Service (TIS National) on 131 450 (9am – 5pm) and ask for LawAccess NSW.

If you find it hard to hear or speak, call the National Relay Service (NRS) on 133 677 and ask for LawAccess NSW or visit
www.relayservice.gov.au

October 2017