Drug Driving Charge?
Drug driving charges lead to significant fines, long licence disqualification, impounding and forfeiture, mandatory drug and alcohol counselling and even imprisonment.
Drug Driving Lawyers Adelaide
Charged with drug driving in South Australia? You are likely feeling anxious, confused, and unsure about what happens next.
A momentary decision or trace presence of an illicit substance can lead to serious legal consequences including licence disqualification, fines, probationary licence conditions, loss of employment or even imprisonment. However, not all drug driving cases are straightforward, and not all charges are unchallengeable.
Book a same-day free 30-minute consultation or (08) 7094 2021 now to speak with a senior traffic lawyer today to avoid losing your licence and achieve the best possible outcome.
What is Drug Driving in South Australia?
Under section 47BA of the Road Traffic Act 1961 (SA), it is an offence to:
- Drive a motor vehicle, or
- Attempt to put a motor vehicle in motion, while a prescribed drug is present in your oral fluid or blood. Unlike drink driving, where a prescribed concentration of alcohol must be present, the mere presence of any amount of the drugs tested is an offence.
Alternatively, the police may charge you with driving under the influence of drugs (DUI).
What Drugs Show Up on a Roadside Test?
| Drug | Detection Period |
|---|---|
| Cannabis / THC | Up to 72 Hours |
| Methylamphetamine (Ice, Speed, Meth) | Up to 48 Hours |
| MDMA (Ecstasy) | Up to 48 Hours |
| Cocaine | UP to 48 Hours |
What is the Penalty for Drug Driving?
The penalty for drug driving offences in South Australia depends on whether or not you have committed a drug driving offence before. This is usually within a period of five years.
First Offence
| Offence | Fine | Disqualification | Demerit | Conditions |
|---|---|---|---|---|
| Expiated | $951 | 3 Months | 4 | Probationary |
| Court | $900 - $1,300 | 6 Months | 4 | Probationary |
Under Section 47BA(6) of the Road Traffic Act 1961 (SA), first-time offenders charged with driving with a prescribed drug in their oral fluid or blood may be issued an expiation notice instead of being prosecuted. This applies if laboratory analysis confirms the presence of the drug and the individual has no previous drink or drug driving offences within the prescribed period. Expiation resolves the matter without court involvement but still results in fines and licence disqualification.
Previous Drug Driving Convictions
In addition to probationary licence conditions, a drink driving conviction may also result in the requirement to complete a drug dependency assessment.
| Offence | Fine | Disqualification | Demerit | Conditions |
|---|---|---|---|---|
| Second | $1,100 - $1,600 | 12 Months | 4 | Probationary |
| Third | $1,500 - $2,200 | 2 Years | 4 | Probationary |
| Subsequent | $1,500 - $2,200 | 3 Years | 4 | Probationary |
The disqualification increases to 3 years if a child under the age of 16 is present in the vehicle.
Demerit Point & Penalty Reduction
Reducing Demerit Points & Disqualification Period
Under section 98B(4) of the Motor Vehicles Act 1959 (SA), courts have a discretion to reduce demerit points (and thereby reduce or prevent disqualification) if one of two conditions is satisfied:
- The offence is trifling; or
- Other proper cause exists.
These pathways allow defendants to demonstrate that, in exceptional or unusual circumstances, the usual penalty is not warranted. Yet courts apply these provisions narrowly, requiring clear proof that the circumstances of the offence are atypical or significantly less serious than the “normal” example of its type.
Even in trifling cases, the court cannot reduce disqualification to less than 1 month.
Getting Your Licence Back After Drug Driving
Your licence will be cancelled if you are found guilty of drug driving in South Australia. After the disqualification is complete, you will be required to reapply for a new licence which will be subject to probationary licence conditions (if previously held a full or probationary licence) or a provisional licence (if previously held a provisional licence).
If you breach these conditions, you will be automatically disqualified for a further 12 months period unless a licence disqualification appeal is made in the Magistrates Court of South Australia. You must not drive without applying for a new licence.
Defences for Drug Driving
You unknowingly consumed the drug
Section 47BA(2) provides a complete defence to drug driving if you can demonstrate that the prescribed drug was unknowingly consumed. However, this defence does not apply if you consumed a drug believed it to be another or if you were indifferent or reckless as to the nature of the drug.
You consumed the drug after driving but before being tested
South Australia’s drug driving laws are designed to deter and punish individuals from driving while under the influence of prescribed drugs. Therefore, if you consumed a drug before being tested but after driving, then, you are not guilty of drug driving.
You were not driving
This may occur in cases of mistaken identity, administrative errors or if someone else was carrying your drivers licence.
Prosecution delays
Any offence against s 47BA(1) is expiable and therefore the limitation for commencing such proceedings is 6 months under s 52(1)(a) of the Criminal Procedure Act 1921 (SA).
Failure to follow correct procedures
Drug driving prosecutions rely on the analysis of oral fluid samples taken under section 47EAA(2) of the Road Traffic Act 1961 (SA) and strict requirements under the Road Traffic (Miscellaneous) Regulations 2014. If the procedures are not correctly followed, the evidence may be excluded.
Defective drug testing apparatus
Section 47H provides for approved testing apparatuses for the purpose of conducting drug screening tests. These include the Securetec Drugwipe II Twin and Cozart RapiScan. If the results are inaccurate due to a defect or error with the apparatus, this will serve as a defence.
Best Drug Driving Lawyers
- Proven Expertise – With years of experience defending traffic and drug driving charges, we know how to challenge evidence, reduce penalties, and secure the best possible outcomes.
- Clear Communication – We explain your rights and options in plain English, guiding you through every step of the legal process.
- Tailored Representation – Every case is unique. We develop strategies to meet your specific circumstances, whether it’s securing reduced disqualification periods or defending against unjust charges or police impropriety, we will not rest until you have receive the best defence.
Frequently Asked Questions
What Constitutes a Drug Driving Offence in South Australia?
In South Australia, drug driving offences primarily fall into two categories:
- Driving with a Prescribed Drug in Oral Fluid or Blood (Section 47BA) – This offence occurs when a driver has detectable levels of prescribed drugs such as THC (cannabis), methylamphetamine (meth/ice), Cocaine or MDMA (ecstasy) in their system, regardless of impairment.
- Driving Under the Influence (DUI) of Drugs (Section 47) – This offence applies when a driver’s ability to operate a vehicle is impaired due to drug consumption.
What Happens if You Get Caught Drug Driving?
South Australia Police Officers may issue an Immediate Loss of Licence to remove a person from the road, on the spot, if they commit a drug driving offence rather than wait until they expiate an offence or attend court and are disqualified. The Immediate Loss of Licence may commence either immediately or after 28 days and will be in place for three months.
At the time of issuing the Immediate Loss of Licence, the South Australia Police Officer may also issue an expiation notice or a Court summons. Repeat offenders will be subject to a longer licence disqualification (up to three years), depending on the driver’s offence history.
In any event, a driver who tests positive for THC, Methylamphetamine, Cocaine or MDMA through an initial drug screening test will be advised by police not to drive until the drug is no longer detectable in their system.
For THC this will be up to 4 hours and for methylamphetamine and MDMA 24 hours. Whenever a police officer believes a driver to be unfit to drive due to alcohol or drug consumption they have the power to require the driver to surrender their keys and immoblise the vehicle.
How Long Will I Be Disqualified For Drug Driving?
Courts also impose mandatory disqualification periods upon conviction.
- First Offence — Minimum 6 months
- Second Offence — Minimum 12 months
- Third Offence — Minimum 2 years
- Subsequent Offences — Minimum 3 years
These disqualifications cannot be reduced or substituted unless:
- It is a first offence, and
- The offence is deemed trifling.
If you drive while serving a drug driving disqualification, you could be charged with Driving Disqualified, potentially facing imprisonment. In some cases, you may also face DUI charges if police allege inability to control the vehicle. If you fail to reapply for a licence post-disqualification, you could face Driving Unlicensed.
What Are The Penalties For a First Time Drug Driving Offence?
A first-time offence for driving with a prescribed drug in South Australia typically results in:
- An expiation notice with a fine of up to $951, 4 demerit points and mandatory 3 month disqualification; or
- If the matter proceeds to court, a fine of $900 – $1,300, 4 demerit points and a mandatory 6 month disqualification.
Disqualification Periods for First-Time Offenders
If an instant loss of licence notice is issued by police:
- First offence — Disqualification period is the same as outlined in the notice (typically three (3) months).
- Second offence — Nine (9) months.
- Third offence — One (1) year and nine (9) months.
- Subsequent offences — Two (2) years and nine (9) months.
If no instant loss of licence notice is issued, the disqualification periods are:
- First offence — Three (3) months.
- Second offence — Twelve (12) months.
- Third offence — Two (2) years.
- Subsequent offences — Three (3) years.
Can I be Charged if I Have a Prescription for Medicinal Cannabis?
Yes. South Australian law currently does not differentiate between medicinal and recreational cannabis use in the context of driving.
If THC is detected in your system, you can and will be charged with a drug driving offence, regardless of prescription status. This remains the case even if you are prescribed medicinal oils which are not psychoactive.
What Happens if I Receive an Expiation Notice?
If you receive an expiation notice, you have three options:
- Pay the expiation notice – You resolve the matter without going to court. However, payment results in a fine, demerit points and automatic licence disqualification. You will also be disqualified if you enter into a payment arrangement with the Fines Enforcement Recovery Unit.
- Seek a review of the expiation notice – If you believe the notice was issued in error, you can request a review – however, reviews are rarely successful.
- Elect to be prosecuted – The matter will proceed to court, where the potential disqualification period is at the court’s discretion and starts at a minimum of six (6) months. If you are unsuccessful, a conviction may be recorded.
What Happens if I Refuse a Roadside Drug Test?
Refusing to undergo a roadside drug test is an even more serious offence that drug driving in South Australia. Consequences include:
- First Offence – fine of $900 – $1,300, 12 month disqualification, on the spot suspension and 6 demerit points.
- Subsequent Offence – fine of $1,500 – $2,200, 3 year disqualification, on the spot suspension and 6 demerit points.
Will a Drug Driving Conviction Affect My Car Insurance?
Section 47C of the Road Traffic Act 1961 (SA), prevents insurers from automatically denying liability under an insurance policy based on a conviction for drug driving.
If you are convicted of a drug driving offence, your insurance coverage will not automatically be void.
However, insurers can still:
- Investigate whether other conditions of your policy were breached.
- Deny claims if it is proven that you violated specific policy terms unrelated to the conviction itself.
However, insurers may still deny claims if a breach of a specific policy condition is proven.
Therefore, while Section 47C protects against automatic denial of coverage, drivers should carefully review their insurance policy terms, particularly conditions relating to substance use or driving offences.
Learn how drug driving convictions affect car insurance in South Australia.
What Does The Court Consider?
When determining penalties, courts consider:
- Type of Licence Held — (e.g., provisional, probationary, or full licence).
- Prior Offences — Previous drink driving or drug driving convictions within the prescribed period.
- Aggravating Circumstances — Such as the presence of a child under 16 in the vehicle, driving while disqualified or driving unlicensed.
Book a Free 30 Minute Consultation
If you are charged with drug driving, do not leave your future to chance.
Our Adelaide traffic lawyers have a proven track record in fighting drug driving charges throughout South Australia and are here to help.
Book a free 30 minute consultation to discuss your case and take the first step toward protecting your licence and your rights.
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