LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

VIC Tested Positive for Drug Driving - Will I Go to Jail?

Discussion in 'Criminal Law Forum' started by boston87, 11 June 2016.

  1. boston87

    boston87 Active Member

    Joined:
    18 August 2015
    Messages:
    6
    Likes Received:
    0
    Hi.

    I was pulled over today and my swab was positive to speed/amphetamine on both test. I know I messed up! Officer told me I will receive a letter in the mail of the lab results. If it comes back positive, will I most likely go to court? And is it possible to be imprisoned, as I'm very worried about that?

    I passed alcohol breatho. I didn't refuse any tests. Is it likely it will go to court or will it be a fine? I'm 28 with a family, new job, and I'm very worried I will go to jail. I don't have any other previous driving charges or drug driving. Please help
     
  2. mark henry

    mark henry Active Member

    Joined:
    6 June 2016
    Messages:
    5
    Likes Received:
    0
    If it comes out positive, you are likely to be charged to court. A judge is the only one that can determine the penalty. Just keep your fingers crossed, wish you the very best.
     
  3. Owens Lawyers

    Owens Lawyers Well-Known Member

    Joined:
    13 June 2014
    Messages:
    103
    Likes Received:
    58
    Without knowing what state you are in it is impossible to answer. If your are in NSW and the lab test is positive you will receive a Court Attendance Notice. However, unless your driving was affected by the drugs in your system (and you are charged with Driving Under the Influence), then no, there is no chance of a prison sentence.
     
    boston87 likes this.
  4. boston87

    boston87 Active Member

    Joined:
    18 August 2015
    Messages:
    6
    Likes Received:
    0
    Thanks for replying.My state is Vic.

    My driving wasn't affected, I was just heading home from getting lunch with my son. They pulled me up in my street.

    They breath-tested me which I had no alcohol in my system. Just the swab :( stupid mistake. One and only!

    I work full time with a family. I'm wondering what my penalty will be. In 3 weeks, the officer said he will ring me with lab result. Will I get a letter with infringement notice? Or will I need to attend court? :(

    Thank you
     
  5. luke moore

    luke moore Active Member

    Joined:
    16 June 2016
    Messages:
    5
    Likes Received:
    0
    Unlike alcohol tests, the labs results don't give you the levels of concentration in your system and the test for the most minute amount. Many people have failed these tests even though they haven't smoked pot or meth in over or, in one case, over a week. You can always plead not guilty on the grounds that you made an honest and reasonable mistake of fact that you thought it wouldn't be present in your system.

    For example, if you smoked on a Thursday and then failed the test on a Monday, it would be reasonable that you thought it would be out of your system by then. Particularly if you read the guidelines on the police website as well as the manufacture's statements, they say that it should only pick it up if you have smoked in the last 24-48 hours. If you had knowledge of these facts then it is quite reasonable that you held the honest belief that it would not be in your system.

    An honest and reasonable mistake is not just grounds to minimise your sentence but is, in fact, a complete defence of the charge itself which, if the judge agrees with you, would leave you with no mark on your record and no loss of licence. Otherwise, I think, in NSW at least, it is a minimum loss of license for three months on your first offence, but certainly not a gaol-able offence.

    There is a judge in NSW that has been letting people off for precisely this reason and there is a number of senior politicians, particularly from the greens that don't agree with this testing at all.

    Acquittal of man caught drug-driving nine days after smoking cannabis throws NSW drug laws into doubt - ABC News (Australian Broadcasting Corporation). Just do a Google search for "mobile drug testing judge lets people off" and you will find plenty of articles.

    I am a law student and not a lawyer. This is no substitute for legal advice. You should seek your own advice but be warned, many lawyers will just tell you to plead guilty and cop the suspension. This is not legal advice and nor am I advising you to lie and say you hadn't smoked in days if you were high at the time.

    Thanks let us know how you go.

    PS drugs are bad, Meth ruins lives.
     
  6. boston87

    boston87 Active Member

    Joined:
    18 August 2015
    Messages:
    6
    Likes Received:
    0

    Thank you for reply, mate. I've been stressing since it happened as it's not the type of person I am. I'm a father of 2 and work like a normal person in society. Will it be a court hearing ? As I have been told it could be a fine in the mail and handover my licence?
     
  7. luke moore

    luke moore Active Member

    Joined:
    16 June 2016
    Messages:
    5
    Likes Received:
    0
    In NSW, at least, you actually receive a court attendance notice and have to face court, given that it is a criminal offense and you will end up with a criminal record. If you don't want to try and plead not guilty, you can always try and plead for a section 10, meaning you are guilty but they won't record a conviction and you won't lose your licence.

    There needs to be compelling reasons to do so, though. For example first offense, it may aeffect your job, career prospects, and family. Perhaps you could say if you lost your licence you would lose your job and that would effectively leave your family destitute. Maybe too, if you attended a drug program or/ drive safe program, this may help convince the judge they should not record a conviction.

    Oh, and it's a 6-month loss of license in NSW not 3. You don't wanna lose your licence for 6 months, that would suck.
     
  8. boston87

    boston87 Active Member

    Joined:
    18 August 2015
    Messages:
    6
    Likes Received:
    0
    Officer wrote down my mobile number and said he will call me with lab results I thought that was strange. I assumed I would get results in the mail from him. Then a letter stating my charge to go to court?
     

Share This Page

Loading...