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A person may make an application to the court for a spent conviction in relation to their drug driving conviction. A spent conviction means that the conviction becomes a “non-disclosable” conviction and, with some exceptions, does not appear on a person’s national police clearance. A spent conviction may only be sought at the time of conviction or 10 years afterwards, there is no scope to apply in between those two times.
The usual considerations for a spent conviction will apply and in particular whether the person has demonstrated that the offence is either trivial or that they are a person of prior good character, and that the offence is unlikely to be repeated, and that there is some adverse impact that may occur if a spent conviction is not granted.
If those criteria are met the court is then enlivened to consider whether it should exercise its discretion to grant a spent conviction and will take into account various factors in that exercise. As an application can only be made at the time a person is convicted, or 10 years afterwards, it is critical to obtain competent legal advice to consider that issue prior, and not after, a conviction has been recorded.
It is illegal to drive in Western Australia with certain illicit prescribed drugs present in your oral fluid or blood and/or to be so impaired by drugs that you are incapable of proper control of a motor vehicle.
The Road Traffic Act of 1974 sets out separate charges for each offence. That there is a sharp distinction between the allegation that there is a prescribed illicit drug in your blood or oral fluid on the one hand as opposed to an allegation that your use of drugs rendered you impaired to such a degree that you were incapable of proper control of a motor vehicle.
While both charges are inherently serious and may result in fines, lengthy disqualification periods and/or imprisonment is important to firstly ascertain the precise nature of the charge made against you by the police.
It should be noted that the Road Traffic Act of 1974 has recently included provisions that also refer to offences committed while a person has both an unlawful level of alcohol in their system and illicit drugs.
If a person is disqualified from a Western Australian court for a drug driving offence they may apply to the Magistrates Court for an extraordinary driver’s licence (E licence) which, if successful, may allow them to drive for a work purpose and/or for the purposes of obtaining urgent medical treatment for themselves, or an immediate family member.
Similar to where a person has lost their licence for a drink-driving offence the court must have due consideration to a number of factors including but not limited to whether the person has provided evidence capable of showing that they meet the criteria of ‘needing’ the licence, and, if they do provide that evidence, whether there is any reason including but not limited to the public safety that should prevent them from having the licence granted to them.
As with every extraordinary driver’s licence matter if an application is refused no further application may be made for a further six months. It is accordingly critical that the correct evidence and matters are brought to the attention of the court and the Department of Transport to ensure the best prospects of success the first time the application is made.
Stevenson Legal has made hundreds of successful extraordinary driver’s licence applications. When engaging our services for a drug driving charge, we’ll be able to assist you with applying for an extraordinary driver’s licence.
Stevenson Legal has acted in the area of traffic law for over 20 years. We have an extremely high success rate in obtaining the best possible outcomes for our clients including but not limited to obtaining the minimum disqualification periods, obtaining spent convictions where appropriate, avoiding terms of imprisonment or arguing that any term of imprisonment ought to be suspended, and in assisting clients in obtaining extraordinary drivers licences if they lose their licence to drug driving and are required to drive for either work or for medical reasons.
When you engage Stevenson Legal you will obtain the services of Nicholas Stevenson, the principal of Stevenson Legal and not a junior lawyer. We stand by the significant number of positive Google reviews we have obtained and believe they speak for themselves.
A police officer can require a person to undergo a drug impairment assessment when the officer reasonably believes:
The person’s driving was impaired by a substance other than alcohol;
The person may have been driving a motor vehicle that caused personal injury or property damage and their driving was impaired by a substance other than alcohol.
The officer can require the person to wait at a certain place, or leave a vehicle, for assessment.
A person will not be required to undergo an assessment if it is more than 4 hours since the driving, or if the person’s physical condition prevents it, however longer timeframes can be permitted in circumstances of accident/injury.
If a person refuses to provide a blood, urine or oral fluid sample without a reasonable excuse, they commit an offence and are liable to a fine and/or imprisonment and licence disqualification.
If the assessment shows the person to be drug impaired, or the person refuses to be assessed, the police officer can require a sample of the person’s blood or urine or both for analysis. The person may have to accompany the officer to a certain place and wait there for testing. The testing must be done within 4 hours of the driving, with potential longer timeframes in circumstances of accident/injury.
A police officer has the power to pull over a driver of a motor vehicle and have them undergo a preliminary oral fluid test. An officer can also require such a test for a person they reasonably believe may have been driving a motor vehicle that caused personal injury or property damage. There is no longer any entitlement to insist on a blood test as opposed to an oral test.
ORAL FLUID SAMPLE
If the preliminary oral fluid test indicates the person has taken a prescribed illicit drug, or if the person refuses to be tested, the officer can direct the person to provide a sample of oral fluid for drug testing. The officer can require the person to accompany them to a certain place, and wait there for testing.