Question
of the week Question of the week

Curious. Interesting. Informative.

12 October 2018

Drive my car

Criminal Law
New South Wales

Asked

Drive with illicit drug in blood - Section 10?

My client's a young male who's been charged under section 111(1)(a) of the Road Transport Act 2013 - drive with illicit drug in blood. First offence. It was a road side test and the drug was marijuana. My client's partner and baby were in the car.

My client admits to smoking a joint approximately 20 hours earlier. My client has had several previous driving offences such as speeding and lost his provisional licence a couple of times.

It is proposed to plead guilty and seek a section 10, no conviction recorded. Do you believe this is appropriate? Is there a risk of further charge given the admission to smoking an illegal substance? Is there any sort of mandatory referral or investigation flowing from the baby being in the car? Anything else? Thanks.

Answered

Thank you for the question.

Given the client’s record, a section 10 dismissal is unlikely.

Any attempt to argue for a section 10 would need to be based upon the argument that the client’s driving was not impaired by having consumed the drug 20 hours before. While impairment is not an element of the offence and being unimpaired does not constitute any defence to the charge, it can go to mitigation of penalty.

It would be necessary to obtain evidence from an expert pharmacologist. The expert would need to be briefed with the police facts, the blood test results and the client’s detailed instructions about what they consumed and when. This should allow the expert to form an opinion about whether the client was impaired at the time of driving. If that opinion were favourable and was relied upon at the sentence hearing, it could ground an argument that there was no risk to the occupants of the car or to other road users as a result of the driving, so the criminality of the offence was at the lower end of the scale and a section 10 dismissal is reasonable – presumably having regard to other factors, such as the client’s need for a licence. If that argument, based on such a report, failed in the Local Court it might receive more favourable consideration on appeal.

However, obtaining the report would of course greatly increase the cost and time involved in the matter without any guarantee of changing the outcome.

The police do not usually, in such circumstances, charge drivers with the very minor offence of self-administer marijuana. The mere assertion of that fact by the client would not support a charge.

The police have mandatory reporting obligations in relation to a child at risk; magistrates do not. If the police at the scene considered the event should be notified they would already have done so. It is unlikely in the circumstances described. If there were to be any such report and if it resulted in an investigation by Family and Community Services, the question of impairment would again become relevant.

Regards

Mentor