If you have had a sample of oral fluid taken by police in accordance with the law, and the sample is analysed and found to be positive, you are likely to have committed an offence against s 49(1)(h) of the Road Safety Act 1986 (RSA) and will be liable to penalties and licence loss.
49(1) A person is guilty of an offence if he or she—
(h) within 3 hours after driving or being in charge of a motor vehicle provides a sample of oral fluid in accordance with section 55E and—
(i) the sample has been analysed by a properly qualified analyst within the meaning of section 57B and the analyst has found that at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and
(ii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle…
A “prescribed illicit drug” includes methylamphetamine (such as ice or speed), MDMA (ecstasy), and THC (cannabis, marijuana, pot etc.) in any concentration (see s 3(1)). Unlike alcohol, any trace of a prescribed illicit drug found in your oral fluid sample will be a contravention of s 49(1)(h).
Section 55E sets out the circumstances in which police may request that you undergo an oral fluid analysis. These include, but are not limited to:
- testing positive to a preliminary oral fluid test;
- refusing or failing to undergo a preliminary oral fluid test;
- undergoing an assessment for drug impairment or furnishing a sample of breath; and
- the failure of a prescribed device to test for a prescribed illicit drug due to an insufficient sample or machine malfunction.
Section 57B also describes who is an “approved” or “properly qualified analyst” for the purposes of analysing a sample of oral fluid.
Penalty: Testing positive to oral fluid sample
The penalties for contravening s 49(1)(h) of the RSA are set out in s 49(3AAA):
(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 60 penalty units.
(c) A third or any subsequent offence is capable of attracting a maximum fine of 120 penalty units.
Pursuant to s 50(1E), if you are found guilty or convicted of driving within three hours while a prescribed illicit drug in any concentration was present in your system, the court must cancel your driver licence or learner permit, and disqualify you from driving for:
- A minimum of six months for a first offence, or
- A minimum of twelve months for a subsequent offence.
This is the mandatory minimum. A Magistrate cannot impose less, but they can definitely impose more. While the court does not consider prior offences that have occurred more than 10 years ago (see s 50AA), a Magistrate may still impose a disqualification period greater than the six month minimum, even for a first offence, if they believe your actions warrant a longer period off the road. You should seek legal advice from a traffic law specialist if you have tested positive to an oral fluid sample after driving. They may be able to help you avoid spending more time off the road than is absolutely required.
You should note that it is common for police to charge you under s 49(1)(h) for driving within three hours of a prescribed illicit drug being in your system, along with a charge under s 49(1)(bb) for exceeding the prescribed concentration of drugs while driving. This is an alternative charge, and only one charge will usually proceed at court. You should contact an experienced criminal solicitor to help you proceed on only one charge.
In order for the police to show you have breached s 49(1)(h) of the RSA, they must show that:
- you were driving within three hours of a sample of oral fluid being taken from you;
- it was taken by a person authorised to take it;
- a part of the sample was delivered to you;
- the other part of the sample was analysed within 12 months of it being taken;
- it indicated the presence of a prescribed illicit drug in your system; and
- the presence of the illicit drug was not due solely to the consumption of the illicit drug after driving or being in charge of a motor vehicle.
There are also procedural requirements police must follow, such as instructing you of the need to remain for three hours for testing, using the prescribed equipment operated by the authorised people, and instructing you how to undergo a preliminary or evidentiary sample for oral fluid. You may discuss any possible irregularities with your traffic lawyer.
If you refuse to comply with a request for a preliminary oral sample or evidentiary sample of oral fluid, you may instead be charged with one of the refuse offences in ss 49(1)(ea) or (eb). You should certainly seek help if you have been charged with refusing to provide an oral sample, as those offences carry even more severe penalties and prolonged disqualification periods.
It is a defence to a charge of illicit drugs being detected in your oral fluid within three hours of driving if your oral sample was requested or taken more than three hours after you were last driving. However, this defence will not be available where you deliberately obstructed, interfered with or delayed the procedure of taking an oral sample of fluid.
It is a defence to a charge under s 49(1)(h) if you had taken a prescribed illicit drug only after you had last been driving. If you stopped and did not again continue driving, then took a prescribed illicit drug, and were then tested using an oral fluid test, you would not be guilty of driving with the prescribed illicit drug present in your system. Under s 48(1B), it is presumed that a drug found in a sample by an analyst is not due solely to the consumption of that drug after driving, and so you would need to show on the balance of probabilities that it was. This may be difficult to prove, and you should discuss this with a solicitor.
Even if you can show that you took the prescribed illicit drug after driving, you may instead be charged with possession of a drug of dependence, or use of a drug of dependence under sections 73 and 75 of the Drugs, Poisons and Controlled Substances Act 1981. You should also speak with a criminal defence lawyer if you have been charged with either of these offences.
What you should do:
If you have been charged, or expect to be charged, with providing an oral sample of fluid which indicates the presence of a prescribed illicit drug within three hours of you driving, you should seek representation from an lawyer who is an expert in drug-driving matters. They will be able to help you understand your charges, and achieve the best possible outcome when you face court.
You may also be facing other drug charges, namely possession, use, or even trafficking of a drug of dependence. If you have been charged with any or all of these offences, you should immediately seek advice from a criminal defence and traffic lawyer.