Legal loophole: No jail for drivers who fail oral fluid drug tests
No matter how many times someone fails a roadside drug test they can’t go to prison. Yet drunk drivers can get locked up.
South East
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Drunk idiots behind the wheel can be jailed, but stoned or iced-up drivers that fail an oral fluid test -and are more likely to hurt someone - can’t.
In a legal quirk it is not possible under the current law for a magistrate to impose a prison sentence on any driver who is positive in a roadside test, even if they are a repeat offender.
This is in stark contrast to drink-driving where jail terms can, and are, given to boozers who continue to get behind the wheel while inebriated.
There have been some shocking cases heard in southeast courts where drugged drivers who have failed an oral fluid test — five times in one example — who were not able to be given time behind bars.
‘RIDICULOUS’: MAGISTRATE’S JAIL CALL
A veteran magistrate said what many were thinking when he told a court it was a complete crock that he wasn’t able to jail a crook who continually drove drugged-up.
Allan Hepburn pleaded guilty to driving three times in three months while off his face on both ice and cannabis but under the law he could only be fined and banned.
The unemployed Frankston 35-year-old already had two other drug-drive priors and a past drink-driving crime on his rap sheet.
Magistrate Rodney Crisp said it was “ridiculous” he could not imprison high drivers appearing before him yet if the same bloke had been a big boozer he could have been slotted.
He said the courts have to deal with an “avalanche of drug-fuelled driving” but the penalties didn’t address the “pressing problem” the community has with ice users.
“This country is awash with it, there is a very high uptake of ice here,” Mr Crisp said.
“Australia is regarded as a dumping ground for this downbeat drug.”
Even Hepburn’s own lawyer said jail would have been a sentencing option for his client, who had “got into ice last year and went nuts on it for six months” — if it had been available.
Hepburn was instead convicted and fined $2000, and disqualified from driving for four years.
DRUGGIE’S DEBRIS DISASTER
Ice-heads aren’t renowned for clear thinking, which was patently evident in the case of Jye Thomas Twyford.
The 29-year-old Pakenham tradie openly admitted he had been stupid when his comical and criminally poor attempt to tie down his bed led to his own drug-driving downfall.
A passing police patrol had seen his parked car and trailer on the side of the road, and went to see if they could help.
They discovered parts of a bed strewn across the highway causing other drivers to have to swerve.
Twyford had been moving furniture but had not tied any of it down and the bed had fallen out of the back of the trailer.
A busted bed was the least of his worries - as he was disqualified from driving at the time and he tested positive for ice.
The magistrate said his history was appalling and it was fortunate for him that he couldn’t be imprisoned for his drug-driving.
“I’m very tempted to impose a jail term today (for the disqualified driving),” he said.
“But instead I will impose monetary penalties to deter you and others.”
He said the disqualified driving offence alone didn’t warrant a prison sentence — this time.
Twyford was given an 18-month licence ban and a $3250 fine.
HIGH FIVE
This journeyman junkie had been caught on a variety of drugs behind the wheel five times, yet couldn’t be jailed for repeatedly failing oral fluid tests.
Only when he rammed a cop car on a dodgy motorbike following a short police pursuit did Lachlan Phillips get given time behind bars.
The 28-year-old also trafficked drugs and possessed weapons - all while he was on bail and meant to be doing a community corrections order.
As well as the drug-fuelled cop crash in Wantirna in August last year he was nabbed in April after he sat in the driver’s seat of a parked car in Endeavour Hills badly substance-affected with a knife in his glove box.
In November 2019 he was caught driving in Endeavour Hills with ice and cannabis in his system and later the same month in Beaconsfield he tested positive for cannabis and ecstasy.
He also proved positive for ice in December 2019 in Cranbourne North.
The magistrate said Phillips was a “deplorable” danger to the community.
For the five drug-drives he was fined $1500 and disqualified from driving for 36 months.
He was also given six months inside for the police car ramming.
STONED AND ‘STUPID’
A self-confessed “tosser” led cops on high-speed stolen car chases while off his head because he was too lazy to walk to the shops.
Brayden Ware, who also goes by the name Marcus Thomas, sat smoking chuff and chugging goon at his home before going for a walk to get more booze and deciding to nick a car on the way.
The 23-year-old toking tradie then thought it would be wise to try and flee from police, but not surprisingly the silly stoner soon came unstuck.
He fled after a crash, but the marijuana mind-muddled man made it easy for cops to catch him as he had left his wallet and jacket behind in the stolen car.
Too drunk and doped to be interviewed the next day he told police he “hadn’t got a complete recollection” of what had happened and “didn’t doubt he did some stupid s**t” and was “a tosser”.
Ware didn’t get any jail time for his stoned driving but was remanded to be assessed for the Drug Court for his serious addictions to weed and alcohol.
SLEEPING, POLICEMAN
A veteran druggie was so off his face on ice he hadn’t realised the stolen car he was driving had crashed into a roundabout.
Brian Nathan Kessells then steered the bashed up BMW around a corner into a side street and promptly took a nap.
Police came for the Hampton Park 46-year-old – who has never held a driving licence - and he tested positive for ice.
In a series of other drug-fuelled crimes he stole another car, led cops on a chaotic chase across the southeast and nicked a Mazda from a mate who had let him stay at her house.
The long-term meth head has a very long rap sheet including convictions for robbery, resisting police, assaults, thefts, drugs and parole violations and has a shocking driving history.
He was remanded in custody and told to expect a lengthy jail term for the thefts and chases - and a big ban for his drug driving.
