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  • Home Resources & Technical Articles Criminal Offence Topics (A to Z) Drug Driving Offences Drug Driving Offences and Penalties in Western Australia (WA)

    Drug Driving Offences and Penalties in Western Australia (WA)

    Just like many other states, Western Australia does not take the offence of drug driving lightly. This is because if the State permitted drugs among drivers, there is a tendency for the rate of road accidents to increase significantly.

    Based on this reason, Western Australia has put in place several laws along with penalties to deter residents from driving under the influence of drugs. These penalties include disqualification, fines, and imprisonment sentences. These laws and penalties are present in the Road Traffic Act 1974 (WA).

    Primarily, this article will consider what the law says regarding drug driving, the penalties that come with it, and possible defences when faced with an allegation of drug driving.

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

    What the Law Says Regarding Drug Driving in WA

    According to the Road Traffic Act 1974 (WA), different sections of the law describe the actions under which a person can become guilty of drug driving.

    Here are some of the actions that can cause a person to be guilty of drug driving:

    #1. Driving under the Influence of Alcohol, Drugs or Alcohol and Drugs

    Section 63 of the Road Traffic Act 1974 (WA), states that it is an offence for any individual to attempt or drive a motor vehicle while under the influence of alcohol or drugs to the extent that they are incapable of having complete control of a vehicle.

    Primarily, in this section, if a person drives under the influence of any intoxicating substance, they may receive a fine not less than 34 penalty units and a compulsory disqualification for a minimum of 10 months.

    While, for a second-time offender, they may receive a fine not less than 63 penalty units and not exceeding 105 penalty units or imprisonment for 9 months. Also, they may face compulsory disqualification for at least 30 months.

    A subsequent offence may attract a fine that is not below 95 penalty units and above 225 penalty units or imprisonment for 18 months and a permanent disqualification.

    However, before the court can give a penalty for driving while under the influence, the prosecution must establish that:

    • The accused intentionally consumed an intoxicating substance.
    • The accused attempted or drove a vehicle.
    • The defendant has no excuse for driving a vehicle while under the influence.
    #2. Driving with Prescribed Illicit Drug in Oral Fluid or Blood

    Based on Section 64AC of the Road Traffic Act 1974 (WA), it is an offence for a person to attempt to operate or drive a motor vehicle while having an illicit drug present in their oral fluid or blood.

    A first-time offender under this section is liable to a fine not exceeding 25 penalty units. In comparison, a repeat offender may face a fine that is not below 25 penalty units and not above 40 penalty units. Also, the court must disqualify the repeat offender from obtaining or possessing a licence for a minimum of 6 months.

    Nevertheless, before the court can convict a person for driving while having illicit drug present in their body, the prosecution must convince the court that:

    • The defendant attempted to operate or operated a vehicle.
    • The appropriate authorities carried out a test and discovered evidence of illicit drugs in the oral fluid or blood of the accused.
    • The defendant has no genuine reason for making an attempt to drive or driving a vehicle.
    #3. Driving while Impaired by Drugs

    Section 64AB of the Road Traffic Act 1974 (WA) states that it is a crime for a person to operate or attempt to drive a motor vehicle while impaired by drugs.

    A first-time offence under this section carries a fine not less than 34 penalty units and not above 75 penalty units. Also, the law stipulates that the court will have to disqualify the first-time offender from obtaining or holding a licence for a minimum of 10 months.

    For a second-time offence, this comes with a fine, not less than 63 penalty units and not more than 105 penalty units, or imprisonment for 9 months. Additionally, the court must disqualify the second-time offender for a period not less than 30 months.

    A third time or a subsequent offender may be liable to a fine not less than 63 penalty units and not exceeding 150 penalty units or imprisonment for 18 months. In addition, upon conviction of the third time or subsequent offender, the court must permanently disqualify them from obtaining or holding a driving licence.

    Nevertheless, before the court can convict a person for the crime of driving while impaired by drugs, the prosecution will need to provide convincing evidence that:

    • The accused operated a motor or attempted to drive a motor vehicle.
    • The accused had one or more drugs present in their body system.
    • The conduct of the accused, as at the time they drove or attempted to drive a motor vehicle, showed that they were under the influence of a drug.
    • The conduct of the accused when they drove or attempted to operate a motor vehicle showed that they were incapable of having full control of a vehicle.

    Possible Defences to a Drug Driving Accusation

    When facing allegations for drug driving, there are several defences that the accused can claim. Some of these defences can lead to the court giving a less severe penalty or a reduction in sentence.

    Nevertheless, pleading guilty to drug driving can result in the court giving a less severe penalty. Usually, pleading guilty applies when the defendant has no legitimate excuse for committing the crime.

    Some of the defences to the charge of drug driving are:

    #1. The Drug Taken Was a Prescription

    A defendant might have a defence if the drug found in their oral fluid or blood was a prescription by a medical practitioner for a therapeutic purpose.

    However, if the prescription drug has the capacity of affecting a person’s driving skills, they must be able to convince the court that they were unaware of the side effect of the drug.

    The defendant can claim that the packaging did not include a label to notify that the drug could render them incapable of exercising complete control of a vehicle.

    #2. The Crime was Unintentional

    A defendant can raise the defence that they did not intentionally commit the crime of drug driving. For instance, a defendant who had stayed close to someone smoking cannabis may have evidence of drugs present in their body system.

    #3. The Defendant Had Stopped Driving Before Consuming the Drug

    If a defendant had stopped operating a vehicle before consuming a drug, they might have a defence to counter the allegation of drug driving.

    The Court that Conducts the Drug Driving Trials

    The Magistrates Court conducts most of the drug driving trials in Western Australia.

    Bottom Line

    In Western Australia, the penalties for drug driving are so severe that a person may receive a permanent disqualification. Apart from the penalties that follow drug driving, a person could end up having a criminal record which in the long run can negatively impact their life.

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

    If an individual is found guilty of a drug driving offence in a WA court, the offence will show up as a disclosable court outcome (DCO) on the result of their criminal background check in Australia.

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

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