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Table of Contents
- Charged With Drive With Illicit Substance in NSW? What It Means
- What the charge actually means
- Why you can be charged when you feel fine
- The penalties
- Does it go on your criminal record?
- How these charges are dealt with
- What are your options on this charge?
- Frequently asked questions
- Get advice before your court date
Charged With Drive With Illicit Substance in NSW? What It Means
Drive with illicit substance is a criminal offence in NSW, and you can be charged even if you weren’t affected by the drug at all. The charge is about having a listed drug present in your system while driving, not about whether your driving was impaired. If police stopped you and a saliva test came back positive, that’s the offence.
It goes to the Local Court, and if a conviction is recorded it goes on your criminal record and usually comes with a licence disqualification. The good news is that a court can sometimes deal with the matter without recording a conviction, using a section 10. For a lot of first offenders, that’s the outcome worth aiming for, and preparation makes the difference.
What the charge actually means
The offence sits in section 111 of the Road Transport Act 2013. It’s an offence to drive, or occupy the driving seat and try to start the vehicle, while there’s a prescribed illicit drug present in your oral fluid, blood or urine. The prescribed illicit drugs are THC (the active part of cannabis), methylamphetamine (speed or ice), MDMA (ecstasy) and cocaine. A separate part of the same section covers driving with morphine present.
This is a presence offence. The prosecution doesn’t have to prove the drug affected your driving, only that it was in your system. That’s the single most common surprise for people charged: you can be well under the influence of nothing, driving perfectly, and still commit the offence because a drug is detectable.
Why you can be charged when you feel fine
Police run roadside saliva tests, often called mobile drug testing. A positive roadside test is checked with a second test, and the sample is sent to a laboratory for confirmation. Because the charge is about presence, timing matters less than people expect. Cannabis in particular can stay detectable for a while after use, well after any effect has worn off, so someone who used days earlier can still return a positive result.
Using medicinal cannabis is not currently a defence to having THC present. This is an area under review, but as the law stands, a prescription for cannabis containing THC does not make it legal to drive with THC in your system. There is a limited medical defence for morphine, but not for the prescribed illicit drugs. If your reading came from prescribed medication, get advice before your court date, because how the charge is handled matters.
The penalties
For a first offence, the maximum fine is 20 penalty units. A penalty unit in NSW is $110, so that’s up to $2,200. A second or later offence carries a maximum of 30 penalty units ($3,300). The offence doesn’t carry a term of imprisonment.
A licence disqualification usually applies where a conviction is recorded, and the length depends on whether it’s a first or repeat offence. A first low-level matter can also be dealt with by a police penalty notice in some cases, which means a fine and an automatic licence suspension rather than court. You can elect to have a penalty notice heard in court if you want to ask for a section 10. Our drug driving page explains how these matters usually run.
Does it go on your criminal record?
If the court convicts you, yes. A drug driving conviction is a criminal conviction and can show up on a national police check, which can affect work and travel. If the court deals with the matter under a section 10, the offence is proven but no conviction is recorded, so there’s no criminal record and often no disqualification. A section 10 is never automatic. It’s more realistic for a first offence with good character and genuine reasons, and less likely for repeat offences.
How these charges are dealt with
There are two broad paths. If you accept the charge, the aim is usually the best possible sentence, which for many first offenders means arguing for a section 10 with no conviction. What you do beforehand counts: getting legal advice early, completing a traffic offender program, and preparing character references.
If you want to defend the charge, there are still questions worth testing, such as whether the testing procedure was followed correctly and whether the sample and analysis hold up. These are technical points, and they’re where a lawyer earns their keep. Drive with illicit substance is different from driving under the influence of a drug, which is a separate and more serious offence under section 112 that does depend on proof you were affected.
What are your options on this charge?
Frequently asked questions
How long does cannabis stay detectable for driving?
It varies with the person, how much was used and how often. THC can be detected in saliva for a period after use, sometimes days later, long after any effect has gone. Because the offence is about presence, not impairment, that detection window is what matters. If you use cannabis, the only safe assumption is not to drive until you’re certain it has cleared.
Can I be convicted if I wasn’t affected by the drug?
Yes. For a drive with illicit substance charge, the prosecution doesn’t need to prove your driving was affected. Presence of the drug is enough. Being unaffected can still matter to your sentence and to whether the court grants a section 10, but it isn’t a defence to the charge itself.
Will I lose my licence for a first offence?
Usually, if a conviction is recorded. Disqualification periods depend on whether it’s a first or repeat offence. If the court deals with the matter under section 10, there may be no disqualification, because there’s no conviction. Get advice on your specific situation before court.