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Drug Driving


John Sutton

For the purposes of the offences of "driving under the influence of drugs" and "driving while impaired by drugs", the definition of "drug" is:

  • A drug to which the Misuse of Drugs Act 1981 (WA) applies; or
  • A drug listed as a poison in schedule 4 of the Medicines and Poisons Act 2014 (WA) section 3; or
  • A substance (other than alcohol) that, when consumed or used by a person, deprives the person (temporarily or permanently) of any of the person’s normal mental or physical faculties.

This means that the definition is very wide and covers many drugs including legal ones.

WHEN CAN THE POLICE REQUIRE A PERSON TO PROVIDE AN ORAL FLUID SAMPLE?

Preliminary Oral Fluid Sample

The police can require any person in charge of a motor vehicle or any person the police reasonably believe was driving or in charge of a motor vehicle to submit to a preliminary oral fluid test. Further, if the police believe that a motor vehicle caused or contributed to an injury to a person or damage to property, the police can require any person they reasonably believe to have been driving or in charge of the vehicle at the relevant time to submit to a preliminary oral fluid test.

If the police require a person to perform a preliminary oral fluid test, the police can require the person to wait at the location for the purposes of conducting the test. This means the person cannot leave prior to the test being conducted. If the person leaves they will commit an offence. The police can also require a person to get out of the vehicle so the police can do the test.

The test involves the police using a prescribed device which wiped on the person’s tongue to collect oral fluid.

Oral Fluid Sample

An oral fluid sample is used by police to test for the presence of a prescribed illicit drug. It is a more accurate test that the preliminary oral fluid test discussed above. Police can require a person to provide an oral fluid sample if:

  • The person have provided a preliminary oral fluid sample and the police officer believes that that sample indicates that their oral fluid contains a prescribed illicit drug; or
  • The person refuses or fails to undergo a preliminary oral fluid test after they have been required to do so by police.

To collect this oral fluid sample, the police use a prescribed detection system. It involves the police using a swab to collect oral fluid from around the person’s gums, tongue and the inside of their cheeks. The police will then use the prescribed device to analyse the sample taken to ascertain the presence of any of the prescribed illicit drugs mentioned.

If police require a person to provide a sample of oral fluid, the person must comply. Police can also require that the person accompany the police to a police station or other relevant place for the purpose of providing that sample and to remain there to allow the sample to be obtained.

WHEN CAN THE POLICE REQUIRE A PERSON TO UNDERGO A DRIVER ASSESSMENT?

Police can require a person to undergo a driver assessment to seek to establish if a person is impaired by something other than alcohol alone. Police can make this requirement if:

  • A person is driving or in charge of a motor vehicle or a police officer has reasonable grounds to believe a person was driving or in charge of a motor vehicle; and
  • A police officer has reasonable grounds to believe that a person is or was driving or attempting to drive whilst impaired by something other than alcohol alone to the extent that it affected their ability to drive;

or;

  • A police officer believes on reasonable grounds that the presence of a motor vehicle caused or contributed to personal injury or property damage; and
    • Does not know who was driving or in charge of the motor vehicle at the time, but believes on reasonable grounds that the person may have been driving or in charge; and
    • Believes on reasonable grounds that person was – when driving or in charge – impaired by something other than alcohol alone.

In order to facilitate the assessment, police can require the person to wait at the place where the requirement was made; and to leave the vehicle for the purpose of the assessment.

The police cannot conduct a driver assessment where;

  • More than four hours have passed since the person was driving or managing the vehicle in the circumstances which gave rise to the requirement; or
  • The person is incapable of undergoing the assessment because of their physical condition.

In conducting the driver assessment the police must comply with the correct procedure. This procedure is contained in r.4 of the Road Traffic (Drug Driving) Regulations 2007 (WA). This regulation stipulates that the police must base the assessment on observations of aspects of the driver’s;

  • Behaviour; and
  • Demeanour; and
  • Condition.

These observations can include the following factors;

  • Any injury to the driver;
  • Any unusual or indicative skin responses;
  • Any smell of alcohol;
  • The driver’s;
    • speech;
    • action;
    • movement;
    • balance;
    • appears affected.
  • The driver’s eyes indicate drug ingestion;
  • The driver’s breathing appears affected by drugs;
  • The driver’s general attitude or the appearance of their clothing indicates drug ingestion; or
  • The driver’s general comprehension appears affected by drugs.



where to next?

Traffic offences are treated seriously in Western Australia. If you have been in an accident, received a licence suspension or received a charge and summons to attend court, it is important to obtain competent legal advice as early as possible. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Perth: (08) 9321 5505
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100