Is it Illegal to Have Drugs in Your System in Victoria?
It is against the law not only to possess, traffick or cultivate a drug of dependence but also to have drugs in your system. Under s 75 of the Drugs, Poisons and Controlled Substances Act 1981 (“the Act”), using a drug means consuming or attempting to consume a drug by swallowing, injecting, smoking, inhaling or using any other method to get a drug into your system. If you are charged with possessing a drug of dependence, you may also be charged with using a drug of dependence.
In Victoria illegal drugs are called “drugs of dependence”. The Act contains a long list of drugs which are illegal, but the most common include cannabis, methylamphetamine (ice), heroin, cocaine, GHB and MDMA.
The Act also sets out that it is illegal to obtain prescription drugs, like valium, methadone, codeine and dexamphetamine, without a prescription.
Police may charge with using an illegal drug if they see you using or attempting to use a drug, you admit to using a drug or you are drug tested and the results show you have used a drug. It is important to remember that anything you say to police can be used as evidence against you, that is why it is recommended you speak to an experienced lawyer before you are questioned by police.
How do the Prosecution Prove a Person used Illegal Drugs?
The prosecution must prove each element of the offence of using a drug of dependence for a person to be convicted of the offence. The elements are:
- A person used or attempted to use a drug;
- the drug they used is listed as an illegal drug in the Act;
- A person knew or should have known that the substance they used was an illegal drug; and
- Their use of the drug was voluntary.
Evidence police may rely upon to prove a person used a drug of dependence includes, witness statements, CCTV footage or a person’s record of interview.
Do I Have a Defence?
To determine whether there are any defences available to you it is important to contact a criminal lawyer as soon as possible. Whether or not you have a defence will depend on the particular circumstances of your case. Deciding whether to plead guilty or not will have significant implications for you, and it’s a decision best made after seeking legal advice.
Possible defences include that: the substance you consumed was not illegal; you had a prescription for the substance you consumed; you were forced to consume the substance; or the police are unable to prove you consumed the substance.
If I Plead Guilty What Penalty Will I Receive?
If you are charged with using a drug of dependence, your matter will most likely be heard in the Magistrates’ Court.
The penalties for using a drug of dependence differ depending on the type of drug that is used. If you are charged with using cannabis the maximum penalty is a fine of up to 5 penalty units ($826.10). However, if a court is satisfied that any other drug was used then the maximum penalty is 30 penalty units ($4,956.60) or 1-year imprisonment or a combination of both.
In deciding what penalty to impose the court will consider:
- whether you have been found guilty of a similar offence before
- your age and personal circumstances
- whether you have a drug addiction
- whether you have rehabilitated or commenced the rehabilitation process
If it is your first offence, you may be granted diversion, which is an opportunity for a first-time offender to avoid a criminal record.
It is important to engage with a criminal lawyer early on if you are charged with using a drug of dependence in order to properly prepare your case.
As Stary Norton Halphen our team of experienced lawyers are available to assist you through the process and provide you with advice about how to get the best outcome, whether that is seeking to have charge the withdrawn if a defence is available to you or minimising the penalty you receive should you plead guilty.