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  • Will drug driving show up on a police check?

    The Police Check is not just a legal document of assessment in Australia. It is a helpful aid to employers, agencies and decision makers. These days, it is rare to get any role or license without your national criminal history check certificate.

    Most employers list criminal record checks as a primary requirement for the job. If you are applying for jobs/licenses in such sectors, you must present a criminal history check certificate to be considered.

    Does a Drug Driving Charge show in a Police Check?

    Lots of things are revealed in your police check results. The Police Check certificate contains all convictions or offences the Court has recorded against you. It doesn't matter how recent or old such convictions are, and only in special legal programs like the Spent Convictions Scheme will such convictions be removed from your criminal record check.

    If any Australian Court convicts you of a Drug Driving Charge, it will appear on your Police Check results.

    The only way a Drug offence will not show in a police check is when they become spent under the Spent Convictions Scheme.

    Not only does the Police Check certificate show the Drug Driving offence, but it also includes other extra conditions the Court issued like;

    All court convictions show up on a police check certificate unless they become Spent.

    Will a Police infringement notice show in my Police Check record?

    Punishments issued outside a Magistrate/Justice do not appear in a Police Check unless the Court upholds it.

    If your Drug Driving offence is a minor one, the Police can issue you an infringement notice. The offender can choose to settle their infringement notice right there (on the spot) or contest the charge in a Magistrate Court.

    However, if a Police issue you with an infringement notice, tickets or any other penalty for such offence, it will enter a Police record. Police issued penalties not contested in Court will only appear in the Police database, not the general criminal database (used for the Police Checking).

    However, if you contest the charge in court and lose the court case, it will appear as a disclosable court outcome on your national criminal history check.

    What is a Police record?

    The police record is a special type of record kept by the Police for all;

    • Violations,
    • Misdemeanours,
    • Tickets,
    • Intervention orders,
    • Parking offence,
    • Cautions,
    • Warnings,
    • Court orders,
    • Court convictions,
    • Arrests,
    • Warrants,
    • And any other violation or history of a person’s contact with the judicial legal system.

    What is a Police record used for?

    While a Police record is strictly handled/maintained by the Police, criminal records are available with the informed consent of the applicant. Contents of the Police record are not part of your Police Check.

    However, the Police may testify against you in Court with a Police record. If the Court admits it, the prosecutor may present the content of a Police record as evidence in an ongoing trial or proceeding. The prosecutor does not need the permission of the candidate before using their Police records as evidence.

    The Police record is more extensive in scope than a Criminal record (where the Police Checks are sourced).

    Although the Crimes Act 1914 (Cth) generally provides rules and guidelines for handling offences in Australia, there is special legislation for Australia's eight States and Territories.

    So, judging a Drug Driving offence can involve many factors, including the jurisdiction of the place where the crime occurred.

    What is a Drug Driving Offence?

    A person is guilty of a drug-driving offence in Australia if they;

    • Drive, or
    • Attempt to operate a vehicle
    • While a prescribed drug is in their bloodstream/body system.

    Australian roads are filled with screening centres that detect THC (Cannabis), Methylamphetamine (speed, ice or crystal meth) and MDMA (ecstasy). Immediately after the Police officer detects such drugs in your system, you will be charged.

    In some cases, drug driving offences are treated the same way as Driving under the influence (DUI) or Driving While intoxicated (DWI).

    Drug offences attract punishments of;

    • Fines of 600 - $1300
    • License disqualification for three months
    • Four demerit point loss

    Driving Under the Influence

    The Court will convict you of a DUI charge if the Police prove that;

    • You operated or attempted to drive a vehicle while under the influence,
    • You could not control the vehicle and caused potential damage to others,
    • Your physical or mental capabilities were significantly impaired,
    • Specific prescriptions/illicit drugs were found in your body (not compulsory).

    While this offence is separate from a drug driving offence, a person cannot be convicted of both relating to a single incident.

    Aggravated circumstances of Drug Driving/DUI offences

    Some circumstances can aggravate Drug Driving or DUI offences in Australia. And these will be recorded in the Police Check result Circumstances for aggravation for such offences are;

    • Where a child (person under 16) is in your vehicle,
    • Where a pregnant woman was in your vehicle,
    • Where you attempted to commit another offence,
    • Causing an accident or killing a person as a result of your reckless Driving.

    General Penalties for DUI offences (depending on the State or Territory where the offence occurred) are;

    • ✔ Fines of 600 - $1300
    • ✔ License disqualification for three months,
    • ✔ Four demerit point loss.

    General proceedings for Drug Driving offences

    The Police will typically issue an expiation notice for these offences. Even if the expiation notice is paid, a 3-month licence disqualification applies.

    If the matter proceeds to Court, it must impose at least a six months disqualification. Severer penalties will apply for repeat offenders.

    Probationary, provisional, and learner drivers face higher penalties for a breach of licence conditions in addition to the drug driving penalties.

    The Court may also impose imprisonment terms for severe offences or repeat offenders.

    What is the minimum quantity of drugs that attract a Drug Driving offence?

    Unlike drink driving offences in Australia, the quantity or amount of drugs present in your system at the test matters less. The Police officer only needs to confirm that you operated a vehicle while having drugs in your system.

    The hard part is that many drugs can remain in your system for hours or even days after you consume them. Yet, it does not matter in the Court or per the law.

    So, there is no minimum amount of drug that must be in your body before an officer charges you for drug driving.

    How does the legislation find you guilty of drug driving?

    The legislation generally empowers a uniformed Police officer to conduct a drug test on the roadside. If a Police officer feels a person is driving under the influence, they can flag the driver and require them to conduct a drug test.

    For the testing, the Police can require you to produce any of the following bodily fluids including;

    • ✔ Saliva,
    • ✔ Blood,
    • ✔ Urine.

    Initially, the Police will conduct an alcohol test to confirm if the cause of intoxication was from alcohol consumption. The breath test is usually the default alcohol test. However, if the test cannot detect alcohol intoxication, the Police will conduct a saliva test.

    The Police may request your saliva to conduct an on-the-spot drug test. If the results come out positive for drugs, the Police will send an oral fluid sample to the laboratory for a test.

    If the results of the laboratory return positive, the person will be charged with the offence of the prescribed drug in oral fluid or blood or Driving under the influence (DUI) offence.

    However, a person cannot be charged or fined for a drug driving offence without confirmation from the laboratory. Only results from the lab analysis can validate the initial tests of the Police. Lab testing can be a long process and can take several weeks for the results to return.

    Procedures for a Drug Test

    The process of a Drug test may vary depending on the jurisdiction or place.

    In Victoria, the law requires all testing processes to be on video. And when the Police charges the driver, they must present them with a copy of the tape within seven days. However, it can be rare to record a testing process in Victoria.

    In New South Wales, in taking an oral sample from the person under arrest, the Police officer must;

    • ✔ Visibly Keep the sample in a container,
    • ✔ Seal and protect the container,
    • ✔ Distinguish the containers using labels or tags for future references,
    • ✔ Issue a certificate to the owner of the sample (driver). It must have a link to the tag of the sample in the container.
    • ✔ Submit the sample for testing in the laboratory as soon as practically possible.

    If the sample used is a Blood Sample;

    In NSW, the driver can provide a blood sample if they prefer it to other oral fluid samples. However, this process must be conducted before a doctor, registered nurse or prescribed person. The law also allows the Police to get a blood sample from a person without their consent.

    In Queensland, the Police or other authorised officers can take a suspected person's blood sample without their consent. It includes cases where the person is unconscious or unable to give consent. The law also allows for illegally gotten blood samples to be submitted as evidence in Court.

    Where the Police cannot request an oral fluid sample from a person

    In states such as Queensland and Victoria, the Police cannot request a sample 3 hours after the person stops driving.

    In NSW, the Police cannot request a blood sample after 2 hours that the driver stopped the car.

    Furthermore, the NSW Police cannot request an oral fluid sample for testing if;

    • The person is plagued by a medical condition/injury that will make the procedure dangerous,
    • The person is already in a medical facility, and the Health care officer refuses a blood test.

    Who can be tested for drug driving?

    In the case of an accident, an official can administer the test to anyone above ten years. The official will administer such tests as practical after being admitted to the hospital or within 8 hours. The official will send the test and sample results to the Police for analysis.

    The Police will charge all (especially the driver) whose results return positive to the drug test.

    What Drugs do the Police test for?

    Currently, only select prescribed drugs are tested for drug driving offences. The Drug screening testing can detect;

    • THC,
    • Methylamphetamine,
    • MDMA.

    According to Australian laws, these are the common drugs listed in the legislation that can constitute a drug driving offence.

    Other Drugs in Australia that constitute a Drug Driving offence

    It does not matter that the Police officer cannot establish the presence of the prescribed drugs in your system. They can still convict you of a DUI or DWI offence if you were impaired by other drugs while driving.

    Driving Under the Influence is a similar offence to the Drug driving offence, and in some circumstances, it is severer. The offence of Driving under the influence does not consider whether the drug was;

    • Prescription based, or
    • Illicitly acquired.

    The Police officer can impose emergency (immediate) punishments for a Driver guilty of a DUI/DWI offence. Such offences can be severe depending on the impact or the nature of the crime.

    What happens after the Police conduct a Drug test?

    The procedure for drug testing can be long and difficult. However, the Police will keep a driver till all screening tests are complete. If the Police find some percentage of prescription drugs in your system;

    • They will prevent you from driving until the drugs can no longer be detected,
    • Keep you in their emergency custody till you are fit.
    • Immobilize your vehicle and seize your keys for severe concentration levels.

    THC drugs can take up to 4 hours to get cleared from a person’s system. And drugs like methamphetamine and MDMA take up to 24 hours to significantly wash off from the person’s system.

    The bottom line is that the Police officer will refuse you to continue driving till the drugs can clear your system.

    The offence of refusing a Drug Test

    It is a severe offence to refuse a Police request for oral/fluid breath samples for;

    • DUI/DWI,
    • Drug test,
    • Alcohol test.

    The Police will charge you for a separate case if you refuse a blood test. And depending on the severity of the case, the penalties can be higher than those of a drug-driving offence.

    If you get a conviction in any of these offences, it will be recorded in your criminal history. And any penalty the Court imposes will also appear on your national criminal history check.

    Refusing a Blood test without sound medical reason can lead to penalties of;

    • Fines of $1100 to $1600;
    • License disqualification for 12 months;
    • Six demerit point loss.

    Refusing a Drug test without sound medical reason can lead to;

    • Fines of $900 - $1300;
    • License disqualification for 12 months;
    • Six demerit point loss.

    How can I obtain a criminal history check?

    Individuals

    If you are an individual then you can apply for a national criminal history check online via Australian National Character Check’s online police check application form. The results are dispatched via email.

    Business and Enterprise Customers

    Business and Enterprise customers are able to sign up to ANCC’s business portal where they can order, manage, track and view candidates’ criminal history check results on their business portal. Organisations will undergo a process for approval prior to being granted access to ANCC’s business portal.

    ANCC sends an invite to the applicant to complete their criminal record check online and handles the application and informed consent form. Contact ANCC’s business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

    Sources

    Crimes Act 1914 (Cth) - https://www.legislation.gov.au/Details/C2021C00127

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

    University of New South Wales (Drug Driving Laws in Australia: What are they and why do they matter?) - http://unsworks.unsw.edu.au/fapi/datastream/unsworks:67275/bin954d8c1c-a5f3-4d8a-acf6-ca8065576a66?view=true&xy=01

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