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ROAD TRANSPORT (ALCOHOL AND DRUGS) ACT 1977 - SECT 20

Prescribed drug in oral fluid or blood––driver or driver trainer

    (1)     A person commits an offence if the person—

        (a)     has been––

              (i)     the driver of a motor vehicle on a road or road related area; or

              (ii)     the driver trainer in a motor vehicle on a road or road related area; and

        (b)     has, within the relevant period, a prescribed drug in the person's oral fluid or blood.

Maximum penalty:

        (a)     for an offence by a first offender––10 penalty units; and

        (b)     for an offence by a repeat offender––

              (i)     if the offender is the driver—25 penalty units, imprisonment for 3 months or both; and

              (ii)     if the offender is the driver trainer—20 penalty units.

    (2)     Strict liability applies to subsection (1).

    (3)     A defendant in a prosecution for an offence against this section cannot rely on the Criminal Code

, section 36 (Mistake of fact—strict liability) in relation to the identity of the prescribed drug if the defendant claims to have—

        (a)     considered, and been under a mistaken belief about, the identity of the prescribed drug; and

        (b)     believed that the prescribed drug was a controlled drug.

    (4)     A defendant in a prosecution for an offence against this section cannot rely on the Criminal Code

, section 36 (Mistake of fact—strict liability) in relation to having delta-9-tetrahydrocannabinol in the defendant's oral fluid or blood if the defendant's mistake relates to the effect of consumption of a cannabis food product on the presence of delta-9-tetrahydrocannabinol in the defendant's oral fluid or blood.

    (5)     In a proceeding for an offence against subsection (1), evidence may be given that a person has a prescribed drug in the person's oral fluid or blood based on—

        (a)     for proof of the presence of a prescribed drug in the person's oral fluid—an analysis of a part of a sample of the person's oral fluid under section 13G (Oral fluid—confirmatory analysis) that indicates that a prescribed drug is present in the sample; or

        (b)     for proof of the presence of a prescribed drug in the person's blood—an analysis of a part of a sample of the person's blood under section 15A (Analysis of blood samples) that indicates that a prescribed drug is present in the sample.

    (6)     In this section:

"cannabis food product"—see the Drugs of Dependence Act 1989

, section 6.

"controlled drug"—see the Criminal Code

, section 600.

"relevant period "means the period beginning when the person stopped being the driver of the vehicle or the driver trainer in the vehicle and ending at the latest time when—

        (a)     a breath or oral fluid analysis of the person may be carried out under this Act; or

        (b)     if section 15 (Taking blood samples from people in custody) or section 15AA (Taking blood samples from people in hospital) applies—a sample of the person's blood may be taken under that section.



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