Have You Been Charged with drive with illicit substance in NSW?

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This charge is cited as (s111 of the Road Transport Act 2013) drive with presence of prescribed drug in oral fluid, blood or urine. This charge is made out when there is a presence of an illicit substance in your oral fluids. It does not mean the drug was active at the time of the roadside test. That would be a different charge, namely drive under the influence of a drug (s112 of the Road Transport Act 2013).

I need my licence for work. Should I pay the fine or elect to go to court?

On 20 May 2019, changes to the drive with illicit substance charges in NSW, came into effect. Prior to this date, everyone charged with this offence had to go to court. Now, for a first offence, you receive an infringement notice from police (like a speeding ticket). Like any infringement notice, you can elect to go to court or pay the fine.

You will also have your licence suspended by Transport for New South Wales (TfNSW) formerly known as the RMS, for a period of three months. This usually happens (via letter) after you have paid your fine (some days or weeks after the charge is laid).

If you elect to go to court you may have your matter dismissed (referred to as a section 10). This would mean that you don’t get a fine and don’t lose your licence. (Before you get your hopes us, keep reading…)

Prior to 20 May 2019, the courts were very reluctant to grant a section 10 for this offence. Their rationale was the need for general deterrence, that is, sending a strong message to the community that you will not get any leniency for this offence.

But here is the kicker…

Under the new system, if you elect to go to court and don’t get a section 10, you will have a criminal conviction on your record. If you pay the fine you don’t have a criminal conviction recorded. Only a (criminal) court can impose a criminal conviction.

Another point to consider is this. If you elect to go to court and don’t get a section 10, then the court will disqualify you from driving (where TfNSW will suspend your licence). The difference between a suspension (given by TfNSW) and disqualification (given by a court) is that if you are disqualified you must re-apply to TfNSW for your licence after the disqualification period before you can drive again. You do not have to re-apply if your licence is only suspended.

Also, the automatic disqualification period given by the court for is 6 months. The court can reduce the disqualification period to 3 months (but cannot go below 3 months).

But I need my licence. Do I take the risk of getting a conviction and disqualification?

The penalty for a first time drive with illicit substance offence, when you are given an infringement notice, is a $581 fine (currently) and suspension of your licence for 3 months. In court the maximum penalties are up to 20 penalty units (currently $2,200) and an automatic licence disqualification of 6 months (which can be reduced to 3 months.) Again, if you elect to go to court and don’t get a section 10, you will have a criminal record.

Are there any other options?

Yes. Pay the infringement notice and appeal the licence suspension.

Remember that once you have received your infringement notice and paid your fine, TfNSW will send you a Notice of Suspension. As soon as you get this letter lodge your appeal. You will see from the letter that by lodging an appeal you can continue to drive after the suspension date (only if you have lodged an appeal). If the court dismisses your matter any suspension or reduced suspension starts from that court date.

So….

Go to your nearest local court registry and lodge an appeal against your licence suspension after you have received your Notice of Suspension from TfNSW. Make sure you lodge your appeal before the suspension period starts and within 28 days of the date on your suspension letter. Complete the form and pay the filing fee (currently $99). This appeal is against TfNSW, Transport or New South Wales (formerly known as the RMS).

Remember, you can continue driving after you have lodged your appeal if you have lodged your appeal before the suspension period starts.

You must lodge the appeal within 28 days of receiving your suspension notice (the date of the offence). If you don’t lodge the appeal within 28 days the magistrate will not be able to hear your case. This is an administrative application and not a criminal process.

If your appeal is unsuccessful TfNSW may ask the magistrate to make an order for you to pay their legal costs. However, TfNSW do not usually seek costs in licence appeal matters. Also note, you cannot get a criminal record from this process. If your appeal is successful the court can remove the suspension or lower the duration of the suspension.

I didn’t know about this. I elected to go to court and lost my licence and got a conviction. What can I do?

The only thing you can do now is appeal the decision of the Local Court magistrate to the District Court. Again, an appeal needs to be lodged within 28 days of the local court matter being finalised. You can lodge your appeal after the 28 days but only up to three months after the date that the local court decision is made. You would need to give reasons why you did not lodge the appeal within 28 days. The court may hear your appeal if they accept your reasons.

You should obtain legal advice before lodging your appeal. A lawyer can assist you in lodging the appeal and appear for you in court.

Connor James

Connor James

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