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Caught with illegal drugs in your possession

If you are caught with illegal drugs in your possession, you might be breaking the law. It is important to know which drugs are illegal and what the consequences may be if you are caught in possession of such drugs. What should you do when caught in possession?

Which drugs are illegal?

In Queensland illegal drugs fall into 3 categories. The penalties relating to Schedule 1 drugs are more serious than for Schedule 2 drugs. How will you know which drugs are illegal and which category the drug falls into?

Schedule 1 is divided into 2 parts. Schedule 1, Part 1 drugs include, heroin, cocaine, crystal meth, LSD and Ecstasy. Schedule 1 Part 2 includes anabolic and androgenic steroids – this is any drug that is chemically related to the male sex hormone, testosterone. Possession without a valid prescription is illegal.

Schedule 2 includes “less serious” drugs such as cannabis, morphine and codeine.

You can find the complete list in the Drugs Misuse Regulation 1987.

When are you breaking the law?

It is important to note that you can be found guilty of possession, even if you don’t own the drugs, and even if you didn’t use it! If your friend leaves his drugs in your car, you might end up being charged with possession of illegal drugs. Or, if you give your friend one Ecstasy pill “to have a good time”, you may face serious penalties for supplying a schedule 1 drug!

You are breaking the law when:

  • You possess illegal drugs – even if it’s not yours!
  • You give, sell, administer, supply, distribute or transport illegal drugs, or offer to do so.
  • If you do anything in preparation for giving, distributing, selling, administering, transporting or supplying, or offer to do so.

Take note: If you are an adult the penalties may be more serious if you supply to:

  • A person 16 years old or younger, or
  • An intellectually impaired person, or
  • Someone who is unaware that they are being given drugs

 Or you supply in:

  • A school, or educational institution, or
  • A correctional facility

You should get legal advice early on in the process when arrested for drugs or if you receive a Notice to Appear.

Are the police allowed to search you?

Yes, they can.

When they reasonably suspect that you may have dangerous drugs in your possession, they may:

  • Stop and search you. They may even strip search you, as long as it is an officer of the same gender as you. They can order a cavity search, but a doctor must do the actual search.
  • Stop and search your vehicle.
  • If they have a reasonable suspicion that evidence may otherwise be hidden or destroyed, they may search your house or business.
  • Use drug detection dogs in certain places.

Take note: The police may not use a listening device, without a court order.

Can the police search you if you have a potentially harmful substance in your possession, but it is not a Schedule 1 or 2 drug?

It is not an offence to possess, but if they have a reasonable suspicion that you have ingested or inhaled the fumes (or you are about to) of a potentially harmful substance they can search you. The circumstances will determine if their suspicion is reasonable or not. Ingesting or inhaling fumes from glue, paint or other potentially harmful substances is called chroming.

If they suspect chroming, they may search you and anything in your possession. They will ask you to explain your possession of the substance. They can remove the item from you, if you cannot provide a reasonable explanation.

If you are affected by the chroming, or if you are so affected that your behaviour might be harmful to others, the police may prevent you from leaving, until they can take you to a safe place. They will take you home or to a hospital where someone can look after you. The police must be sure that this person agrees to look after you.

You may leave the safe place at any time, unless there is an order for you to stay in such a place.

Do you have to speak to the police?

You have the right to remain silent, but in some cases you might be breaking the law if you refuse to answer certain questions.

If you are questioned for a drug related offence, you have to provide your name and address to the police and your place and date of birth. Refusing to answer is breaking the law.

Again, if you are not sure, or you don’t want to answer the questions, get legal advice. Remember, the police can use anything you say to them at any time. It may be used against you in court. There is no such a thing as “off the record” when speaking to the police.

What will happen in court?

On the day you go to court the duty lawyer may assist you. If it is a minor drug offense you may qualify for a court diversion. It is best to get legal advice before you go to court.

Take note: Get a copy of your QP9 form – the Queensland Police form which is a summary of why you are charged and what happened according to the police. You should get that before you speak to a lawyer. It gives the lawyer the police version of events. You can ask the police prosecution for a copy if you are charged. You can also get a copy from the police prosecution at your first court appearance. The duty lawyer might be able to assist you. If you don’t get this on the first court date, you will have to apply in writing to the police prosecution and you must show a copy of your ID.

Where do you get legal advice?

If you can afford it, find a private lawyer as soon as possible, rather than waiting.

The Queensland Law Society will refer you to private lawyers who specialize in drug related matters.

You can apply for legal aid - they can give advice, but won’t be able to provide a lawyer to attend the police interview. Having your lawyer present can be very important. Remember whatever you say is “on the record”.

You can also approach the community legal centres, which can assist with free preliminary advice on some criminal matters, but most won’t provide lawyers to represent you in your case. Apart from legal advice you can also get information, counseling and support from the Alcohol and Drug Service, or the Drug Arm.

Drug related offences have serious consequences. Think before you “experiment” or “just want to have a good time”.  Drugs can lead to a criminal record. Get legal advice when faced with a possible criminal conviction.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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