02 9159 9010
Charged with Drug Driving in NSW?
It is an offence under section 111 of the Road Transport Act 2013 (NSW) to drive or attempt to drive a motor vehicle while a prescribed illicit drug is present in your oral fluid, blood, or urine. Importantly, this is a “presence” offence — it does not require the prosecution to prove that your driving was actually impaired by the drug. The mere presence of the substance in your system is sufficient.
This is a separate offence from driving under the influence of a drug (section 112), which requires proof that your driving ability was actually affected.
If you have been charged with drug driving, contact Blackridge Law on 02 9159 9010 for a free consultation.
What Drugs Are Tested For?
NSW roadside Mobile Drug Testing (MDT) detects four prescribed illicit drugs:
- THC (the active component in cannabis)
- Methylamphetamine (ice/crystal meth)
- MDMA (ecstasy)
- Cocaine
Under section 111(3), driving with morphine present in your blood or urine is also an offence, unless you can prove the morphine was consumed for legitimate medicinal purposes under a doctor’s prescription (section 111(5)).
How Drug Driving Is Detected
Drivers are most commonly detected through roadside oral fluid testing (“lick tests”), which may be conducted as part of random testing operations (often combined with RBT), after an accident or collision, or where police have a reasonable suspicion based on a driver’s behaviour.
If the initial roadside test is positive, a second oral fluid sample is taken and sent to a laboratory for confirmation. Police will issue a 24-hour licence suspension on the spot. There can be significant delays between the roadside test and laboratory results — drivers may not be charged until weeks or months after the incident.
Penalties for Drug Driving
Infringement Notice (First Offence — no prior major traffic offence in 5 years):
Since May 2019, a first-time drug driving offence may be dealt with by way of penalty infringement notice (similar to a speeding fine). The fine is approximately $572, and Transport for NSW will issue a 3-month licence suspension notice. You have the option to pay the fine or elect to have the matter dealt with in court.
Court Penalties:
| Offence | Max Fine | Auto Disqualification | Min Disqualification |
|---|---|---|---|
| First offence (s 111) | $2,200 (20 penalty units) | 6 months | 3 months |
| Second or subsequent offence | $3,300 (30 penalty units) | 12 months | 6 months |
Drug driving is a “fine only” offence, meaning there is no maximum penalty of imprisonment. However, a conviction will be recorded on your criminal record, and your licence will be disqualified. The only way to avoid a licence disqualification is to receive a non-conviction outcome such as a Section 10 dismissal.
Defences to Drug Driving
- Testing Procedure Errors: Police must collect the oral fluid sample within two hours of the roadside test. If this timeline was not met, the evidence may be inadmissible.
- Testing on Private Property: Police cannot require a person to undergo an oral fluid test on their own property. If the test was conducted on private property, the results may be excluded.
- Chain of Custody Issues: If there are errors or gaps in how the sample was handled, transported, or analysed, the reliability of the results can be challenged.
- Medicinal Use Defence (Morphine Only): Under section 111(5), it is a defence to a morphine charge if the presence was caused by a substance consumed for legitimate medicinal purposes under a doctor’s prescription.
- Identification Issues: The prosecution must prove you were the person driving the vehicle at the relevant time.
Should I Pay the Fine or Go to Court?
This is one of the most common questions we receive. If you pay the infringement notice, you will receive a 3-month licence suspension from Transport for NSW and can appeal this suspension to the Local Court within 28 days. However, paying the fine means accepting the offence — it does not give you a criminal conviction, but you cannot later challenge the charge itself.
If you elect to go to court, you have the opportunity to seek a Section 10 dismissal, which means no conviction and no licence disqualification. However, if the court does convict you, the automatic disqualification is 6 months (compared to 3 months via infringement notice). Getting legal advice before making this decision is critical.
How Blackridge Law Can Help
Our traffic lawyers have extensive experience defending drug driving charges. We assess whether the testing procedures were properly followed, advise you on the best path forward (fine vs. court), prepare strong submissions for Section 10 outcomes, and represent you in court. We also assist clients in enrolling in the Traffic Offender Intervention Program (TOIP) and obtaining supporting material to present to the court.
Speak with a lawyer
Charged with drug driving? Call Blackridge Law now.
Suite 36, Level 4, 402-410 Chapel Rd, Bankstown NSW 2200
Free consultation | Fixed fees | Available 24/7
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