#192 Holland Park Drug Driving

Join Wiseman Lawyers Traffic Lawyer Andrew Wiseman at Holland Park Magistrates Court as he represents a client charged with Repeat Drug Driving. Watch Andrew explain what happened in the courtroom, along with the outcome which he achieved and how he achieved it.

All right, today I'm at Holland Park Magistrates Court, client was charged with their third drug driving offence in about an 18 month period. There's two types of drug driving. There's the more serious which is under the influence of a drug, meaning you are literally high on drugs. The less serious is what's called drive whilst relevant drug present. What that means is you've consumed it at some point, the effects have warn off but there's still traces of it in your system. So you're no longer high, but you've been pulled over, done the roadside test and has come back as positive. So basically my client had been previously done late last year and on this occasion there was two incidences, one of being pulled over relevant drug present and then a couple of weeks later getting done again. So he's come to me, needing me to resolve the second and third.

So second and third in total, second and third in five years and second and third in the last 18 months. So basically if you've got previous in the last five years, the laws forced the mandatory and minimums and maximums up. So for your first offence of relevant drug president, it's a penalty range of one to nine months. If it's your second, it's a penalty range of three to 18 months. And if it's your third, it's a starting point of six months with a lifetime maximum. And they are all cumulative, meaning they add on top of one another. So if you go to court and you get sentenced for two different charges of relevant drug present, the penalty you get for the first one adds on top of or should say for the second one adds it on top of the penalty for the first one.

And there's a few different ways of looking at the law as well. So as I said, your second in five years is three to 18 months. Third in five years is minimum six. So at face value, it's an absolute best starting point of nine months. So minimum three for the second in time, minimum six for the third in time, cumulative meaning adding on top of each other, makes minimum nine months. However, I've got a certain view and some magistrates but not all have the same view that if you get sentenced for your second and third at the same time, there's technically only one previous for both of them. So even though you've offended in sequence of 1, 2, 3, you're being sentenced in sequence of one and then two and three at once.

So literally the conviction for the second and third are the same moment in time. So for both of them, there is only on previous. Not all magistrates agree with that interpretation of the law and those that are inclined to think that way do need quite a bit of persuasion. So as a starting point, I said to my client absolute best case is nine months. But if there's any room for movements on the law, I'll do it. The other issue is there's what's called a notice to alleged previous convictions. If police haven't issued that there can be room for movement and they hadn't up until today, so I was hoping to leverage that, but of course the morning of court, they had their T's crossed their I's dotted and served us with the notice. So I couldn't manoeuvre on that, but the only room for movement on trying to reduce the mandatory minimum for nine months down was to commit to magistrate that the second and third in time were actually being sentenced in parallel. So technically there was only one previous for both of them.

And again, worst case today was a lifetime loss of licence. With regard to preparing, I've got him to complete the reformatory course, we get all of our clients to do it, can be done online. Got him to get some references that we give to all of our clients. And it lets the people who are going to write the references know who it's going to be addressed to, [keyboards 00:00:04:33] are going to cover, et cetera. Got my client to fill out the online form that we get our clients to fill out that gives us all the information we need. Prepared my submissions prior to today, met the client court, ran through what was going to happen. We went in, I launched straight into that argument about the sequences of sentences. So whether or not there was two previous for the third offence or just one, convictions that is not offences.

Ultimately I was able to persuade the magistrate to get on board with that argument. So he agreed that the third in time for the sake of sentencing only had one previous. So that allowed me to convince the magistrate that the mandatory minimum for both charges was three months. So three plus three equals six, as opposed to three plus six equals nine. However, given there was a properly served notice to alleged previous and given his history was otherwise pretty ordinary. Didn't matter how much I jumped up and down, he wasn't going to accept that the minimum six months was a probe. But keeping in mind the minimum should have been nine months. But because I won that argument, I convinced the magistrate was minimum six months. However, whilst he wasn't going to give me exactly what I wanted, he only went beyond that by one month. So he gave the minimum three months for the second in time offence, but he gave four months for the third in time offence.

So it was a total of seven months, which is obviously two months short of the nine months that a lot of magistrates may have thought it should have been. And it was two months short of what I told the client to expect. So he's elated. He was expecting... Well he'd run around and spoke to a lot of lawyers and a lot of them told him that he'd get much more than nine months. But that's the difference between getting a specialist and someone who does a bit of everything. So he rocked up today, assuming nine months would be the best possible outcome. He's got seven and very good fines. He's very happy, big smile on his face. I'm Andrew Wiseman, Holland Park Magistrates Court. Thanks for watching.