Drug Driving Charge?

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.

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.

This may occur in cases of mistaken identity, administrative errors or if someone else was carrying your drivers licence.

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).

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.

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.

In South Australia, drug driving offences primarily fall into two categories:​

1. 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.
2. 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.

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.

Courts also impose mandatory disqualification periods upon conviction.

1. First Offence —  Minimum 6 months
2. Second Offence —  Minimum 12 months
3. Third Offence — Minimum 2 years
4. 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.

A first-time offence for driving with a prescribed drug in South Australia typically results in:

1. An expiation notice with a fine of up to $951, 4 demerit points and mandatory 3 month disqualification; or
2. 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.

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. 

If you receive an expiation notice, you have three options:

1. 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.
2. 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.
3. 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.

Refusing to undergo a roadside drug test is an even more serious offence that drug driving in South Australia. Consequences include:  

1. First Offence – fine of $900 – $1,300, 12 month disqualification, on the spot suspension and 6 demerit points.
2. Subsequent Offence – fine of $1,500 – $2,200, 3 year disqualification, on the spot suspension and 6 demerit points.

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:

1. Investigate whether other conditions of your policy were breached.
2. 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.

When determining penalties, courts consider:

1. Type of Licence Held — (e.g., provisional, probationary, or full licence).
2. Prior Offences — Previous drink driving or drug driving convictions within the prescribed period.
3. Aggravating Circumstances — Such as the presence of a child under 16 in the vehicle, driving while disqualified or driving unlicensed.