The offence of driving whilst impaired by a drug is found in s 49(1)(ba) of the Road Safety Act 1986 (RSA).
49(1) A person is guilty of an offence if he or she—
(ba) drives a motor vehicle or is in charge of a motor vehicle while impaired by a drug
Penalty: Drive whilst impaired by a drug
The penalties for an offence against s 49(1)(ba) are found in s 49(3).
(a) A first offence is capable of attracting a maximum fine of 12 penalty units.
(b) A second offence is capable of attracting a maximum fine of 120 penalty units or imprisonment for no more than 12 months.
(c) A third or any subsequent offence is capable of attracting a maximum fine of 180 penalty units or imprisonment for no more than 18 months.
Pursuant to s 50(1C), if you are found guilty of an offence against s 49(1)(ba) for driving whilst impaired by a drug, your driver’s licence or learner’s permit must be cancelled, and you must be disqualified from driving for a minimum of:
- 12 months for a first offence, or
- 24 months for a subsequent offence.
When determining whether this is your first or subsequent offence, a court will not consider a conviction or finding of guilt for a driving offence which occurred more than 10 years ago (see s 50AA). However, a Magistrate’s discretion is not curtailed by the section, and you may receive more than the mandatory minimum even if it has been more than 10 years between your prior offence and subsequent offence.
It is also common for police to lay a ‘drive under the influence’ charge under s 49(1)(a) along with your ‘drive whilst impaired by a drug’ charge. This is because s 49(1)(a) also applies to driving whilst under the influence of drugs or alcohol. However, a ‘drive under the influence’ charge is more onerous than a ‘drive whilst impaired by a drug’ charge, and you should seek legal representation in order to help you proceed on the charge which would result in more lenient penalties, including spending less time off the road.
If you have been charged with driving while impaired by a drug, the police may also immediately suspend your licence pursuant to s 85A. This would mean you cannot drive until your matter has been determined at court.
If you are reasonably suspected by a police officer to be driving or in control of a motor vehicle while impaired by a drug (i.e. a police officer thinks you are unable to drive properly because you are impaired by a drug: s 48(1AD)), you may be required to undergo a drug assessment. In most circumstances, the assessment must be video-recorded: s 55A(6). If your behaviour on an assessment is consistent with behaviour usually associated with driving while impaired by a drug, you will likely be charged with that offence. The police must issue you with a copy of the recording and a written assessment of drug impairment: s 55B(5).
The list of drugs which are applicable to s 49(1)(ba) is extensive, and is not limited to illicit drugs. It may include prescription or non-prescription medication which could impair your driving. Codeine for example, which is found in cough medicines, may impair your ability to control a vehicle if ingested in large quantities, and you may be liable to a charge of driving whilst impaired by a drug.
Section 49(3B) creates a defence to a charge of driving while impaired. It is a defence if the drug is a permissible non-prescription drug, or prescription drug, and the person used the drug in accordance with the advice of a registered medical practitioner, dentist or pharmacist. In such circumstances, you may be able to show that you could not reasonably have been aware that the drug would impair your ability to drive. However, if labels, warnings, or medical advice suggest the drug may impair your ability to drive, this would defeat the defence. The defence will also be lost where non-prescription or prescription drugs are combined with another drug.
What you should do:
If you have been charged with driving while impaired by a drug in contravention of s 49(1)(ba) of the RSA, you should contact a criminal defence solicitor immediately. With plenty of time, you may be able to have your charge withdrawn if you can satisfy the defence outlined above. In any other circumstances, your lawyer may be able to help you either keep your licence or spend as little time off the road as possible.