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Drug Driving Offences and Penalties in South Australia

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Australian National Character Check (ANCC) makes every effort to provide updated and accurate information to its customers. However due to the continuously changing nature of legislations for the Commonwealth and various States and Territories, it is inevitable that some information may not be up to date. The information on the website is general information only. The contents on the website do not constitute legal or professional advice and should not be relied upon as a substitute for legal or professional advice. While we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, suitability, accuracy or availability with respect to the information.


Being under the influence of drugs while driving can give a driverless control of a vehicle. Consequently, this could result in a road accident. South Australia takes it as a serious offence when anyone operates a vehicle while having any sign of drugs in their system.

Drug driving can put a person in a position where they face severe penalties such as fines and even imprisonment. The laws regarding drug driving are present in the Road Traffic Act 1961 (SA).

Under this legislation, drug driving comes in two categories: driving under the influence and driving with prescribed drugs present in oral fluid or blood.

This article will closely look at the different offences for drug driving as seen in the Road Traffic Act 1961 (SA), its penalties, and possible defences.

If an individual is convicted for a drug driving offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check.

What the Law Says Regarding Drug Driving

Under the law, an individual can be guilty of drug driving when caught carrying out any of the following acts:


#1. Driving under the Influence

Based on Section 47 of the Road Transport Act 1961 (SA), it is an offence for a person to put a vehicle in motion after consuming any intoxicating substance to the extent that they cannot exercise complete control of the car. This offence is punishable by a minimum fine of $1100 but not exceeding $1600 or a maximum of 3 months imprisonment.

This carries a minimum fine of $1900 but not above $2900 or 6 months imprisonment for a repeated offence. However, if the vehicle the offender operated was not a motor vehicle, they may receive a fine of $500.

Additionally, the law establishes that driving under the influence while having a passenger below the age of 16 may receive a maximum fine of $1600 or 3 months imprisonment. While, for a repeat offender, they may be liable to a fine of $2900 or 6 months imprisonment.

Also, upon conviction for driving under the influence, there is an order that the court must impose, especially when it is a motor vehicle. The court must disqualify the defendant from obtaining or possessing a driving licence for 12 months. While, for a subsequent offence, the period will be nothing less than 3 years.

Nevertheless, for the prosecution to prove that a person is guilty of a driving under the influence offence, the prosecution must be able to show that:

  • The defendant had a certain amount of drugs in their system capable of impairing their mental and physical ability.
  • As a result, the defendant put a vehicle in motion.
  • The defendant has no legally justifiable reason for driving under the influence.

#2. Driving with Prescribed Drugs Present in Oral Fluid or Blood

According to Section 47BA of the Road Transport Act 1961 (SA), it is a crime for anyone to operate a motor vehicle while having a prescribed drug present in their oral fluid or blood.

An offender under this section may receive a fine not exceeding $1300 or less than $900. While, for a repeat offender, they may get a fine not below $1500 or above $2200.

Furthermore, this section of the law states that driving with prescribed drugs present in oral fluid or blood and having a passenger below 16 years carries additional penalties, especially when it is a motor vehicle.

These penalties include a maximum of $1300 for a first-time offence, while a second-time crime comes with a fine not exceeding $2000.

Also, the law establishes that if the court finds a person guilty of driving while having prescribed drugs present in their oral fluid or blood, the court will have to impose order.

This order has to do with the disqualification of an offender from obtaining or possessing a driving licence for less than 6 months. While, for a second-time offence, a minimum disqualification of 12 months.

In addition, a third-time offence carries a minimum disqualification of 2 years and other subsequent offences come with at least 3 years disqualification.

However, for a person to be guilty of driving while having prescribed drugs in their oral fluid or blood, the prosecution must convince the court of the following:

  • First, the defendant intentionally took prescribed medication.
  • The accused drove a vehicle without a legitimate excuse.

It is important to note that if a person at the age of 16 or more commits the crime of driving while having drugs in their oral fluid or blood, they may not be prosecuted unless the individual received an expiation notice and chose to settle the case in court.

An expiation notice explains to the recipient that they have committed an offence and that instead of appearing in court, they can pay a separate fee.

Defences to the Charge of Drug Driving

When charged with drug driving, a person may be eligible to use some defences to counter the accusation. These defences can cause the court to acquit the defendant or lessen the punishment. These defences are:


#1. The Accused is Innocent

The prosecution can charge the wrong person for the crime of drug driving. The accused can claim that they did not operate a vehicle in this situation. Nevertheless, this might require that the defendant provide proof to the court. This could be the statement of a witness.


#2. Faulty Testing Apparatus

Since detecting the crime of drug driving relies on a testing apparatus, a defendant can claim that it gave a false result because it is defective.


#3. Unintentionally Consuming a Drug

It is legally acceptable for an individual to raise the defence that they committed the crime of drug driving due to unintentionally consuming a drug. This is a complete defence if the defendant can successfully convince the court.


#4. The Accused Had Stopped Driving before They Took The Drug

A defendant might not be guilty of drug driving if they had stopped operating a vehicle before consuming a drug.

The Court that Handles the Trials for Drug Driving

In South Australia, there are primarily three courts: the Magistrates Court, District Court, and the Supreme Court. Among these three courts, the Magistrates court handles most criminal trials, including drug driving cases. However, if the defendant is unsatisfied with the Magistrates court's decision, they can appeal to the District Court.

Conclusion

The crime of drug driving attracts several penalties; As such, a person should seek legal counsel when accused of drug driving. A professional legal practitioner has the experience required to ensure that a person gets the best result possible in a legal proceeding.

Will a Drug Driving offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a drug driving offence, the offence will show up as a disclosable court outcome (DCO) on the result of their Nationally Coordinated Criminal History Check in Australia.

Individuals can obtain a nationally coordinated criminal history check (NCCHC) via the Australian National Character Check - ANCC® website.

Sources

Motor Vehicle Act 1959 (SA) - https://www.legislation.sa.gov.au/lz?path=%2Fc%2Fa%2Fmotor%20vehicles%20act%201959

Motor Vehicle Act 1959 (SA) (Austlii References) - http://classic.austlii.edu.au/au/legis/sa/consol_act/mva1959172/

South Australia Government (Drug Driving Disqualification) - https://www.sa.gov.au/topics/driving-and-transport/offences/disqualification-and-suspension/types-of-disqualification/drug-driving

Legal Services Commission of South Australia (Drug Driving and the Law Factsheet) - https://lsc.sa.gov.au/cb_pages/drugdrivingfactsheet.php

Legal Services Commission of South Australia (Alcohol and Drug Penalties) - https://lawhandbook.sa.gov.au/ch12s08s03s01.php

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