Drug Driving Minimum Penalty Despite Prior Traffic History

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Minimum Penalty Imposed, drug driving, prior traffic history. Talon Legal, Adelaide traffic lawyers.

Despite earlier traffic matters on her record, our client received the drug driving minimum penalty, with the three months she had already spent off the road counted toward her disqualification.

She was charged under section 47BA of the Road Traffic Act 1961 (SA) with driving while methylamphetamine was present in her oral fluid, and her licence had already been suspended for three months under an immediate loss of licence notice. The Port Adelaide Magistrates Court took that period into account and imposed only the remaining three months of the mandatory disqualification.

Outcome at a glance

  • Guilty plea to drug driving under section 47BA of the Road Traffic Act 1961 (SA), a first offence for that section
  • Earlier alcohol-related traffic history raised by the court
  • Minimum fine imposed and court costs waived
  • Three-month immediate loss of licence counted, leaving a three-month disqualification
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Background

Police stopped our client for roadside testing, and methylamphetamine was detected in her oral fluid. She was given an immediate loss of licence notice, and by the time her plea was heard she had been off the road for three months.

No poor driving, collision, impairment, alcohol, test refusal or child passenger was alleged.

She accepted responsibility and instructed us to plead guilty.

The charge was a first offence for the purposes of section 47BA, but she had earlier alcohol-related traffic matters on her record. The magistrate raised that history and asked whether it showed a repeated pattern of driving after alcohol or drugs.


The law: the offence, the penalty and the immediate loss of licence

Section 47BA(1) makes it an offence to drive, or attempt to put a motor vehicle in motion, while a prescribed drug is present in oral fluid or blood. The offence turns on the presence of the drug, so the prosecution does not have to prove impairment or any particular concentration.

For a first offence the fine is not less than $900 and not more than $1,300. On conviction the court must also disqualify the driver for at least 6 months for a first offence. Under section 47BA itself, that minimum can be reduced only if the court is satisfied, on evidence given on oath, that the offence is trifling, and section 47IAA(9), below, operates despite that. The disqualification cancels any licence the driver holds (section 47BA(4)).

Earlier drink or drug driving convictions make an offence a second or subsequent one only if the earlier offence was committed within the prescribed period before the new one (section 47BA(5)). That period is 5 years, or 3 years where the earlier offence was a category 1 offence (section 47A(3)).

A police officer who reasonably suspects a section 47BA offence can give an immediate loss of licence notice, which suspends the driver’s licence, or disqualifies a driver who holds none, for up to 3 months (section 47IAA(2), (4) and (12)). If the driver is later convicted and a mandatory minimum disqualification applies, the court must take the period already served into account. Where that period has ended, the court may impose less than the mandatory minimum, but not less than the difference between the minimum and the time already served (section 47IAA(9)).


Why the prior history mattered

The earlier matters did not make this a second offence, but they were still relevant to sentence. The Sentencing Act 2017 (SA) requires a court to take into account, where relevant, a defendant’s character, general background and offending history (section 11(1)(d)).

The magistrate’s question was therefore a proper one, and the answer bore on whether the penalty would stay at the statutory minimum.


Our approach

We did not minimise drug driving. The plea accepted that the offence was serious and that the court was entitled to be concerned about her history.

We answered the magistrate’s question directly. The earlier court matter was a long time before this offence, and this offending happened against a background of significant personal and health difficulties. The submission put that forward as context for the history, while accepting that the history was relevant.

Her written apology was provided to the court before the hearing so the magistrate could read it before sentencing.

We were careful with her employment. She had worked for many years in aged care, a job that requires a police clearance, but she did not drive residents as part of it. The submission put the real concern, which was the effect of the offence on her clearance and her prospects of advancement, and did not overstate what losing her licence meant for her work.

The court also had her family and caring responsibilities, her health difficulties, the practical difficulty of getting around without a licence, and her shame and remorse.

We asked the court to give full credit for the three months she had already served and to impose only what remained of the 6-month minimum. She did not attend the hearing; we appeared for her.


Outcome

The Port Adelaide Magistrates Court imposed the minimum fine and waived court costs. It took the three-month immediate loss of licence into account and disqualified her for the remaining three months, the shortest period section 47IAA(9) allowed.


Key takeaways

A first offence under section 47BA carries a fine of $900 to $1,300 and, on conviction, a disqualification of at least 6 months.

Time already served under an immediate loss of licence counts. Section 47IAA(9) requires the court to take it into account and allows it to reduce the disqualification below the mandatory minimum, down to the difference between the minimum and the time already served.

Earlier history can matter even when it does not make the charge a second offence, because offending history is a sentencing factor under section 11(1)(d) of the Sentencing Act. Here the history was met directly, and the penalty stayed at the minimum.

Because the disqualification cancels the licence, a driver whose disqualification has ended still needs a licence before driving again.



If you have been charged with drug driving, particularly if you have already served an immediate loss of licence or have earlier traffic matters on your record, talk to us before you enter a plea. Book a same-day free 30-minute consultation or call (08) 7094 2021 to speak with a senior traffic lawyer, or read more about drug driving offences.

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