Offence provision

Driving with illicit drugs present in your blood, commonly referred to as “drug driving”, is an offence under section 111(1) of the Road Transport Act 2013 (NSW).

 

What is drug driving?

Police may charge you with drug driving if a roadside drug test detects the presence of illicit drugs in your system. The test, which is carried out by licking a saliva swab, is able to detect the presence of:

  • Cannabis.
  • Ecstasy/MDMA.
  • Cocaine.
  • Methamphetamine (ice).
  • Amphetamines (speed).

If you fail the preliminary “lick test”, you will need to repeat it. If you still test positive, further laboratory analysis will be conducted. This can take 24 hours, and you will not be permitted to drive during that time. If the test confirms the presence of illicit drugs, you will be charged with the offence of driving with the presence of an illicit drug.

 

Licence suspension

If you are charged with drug driving, the police can suspend and confiscate your licence within 48 hours of the charge or penalty notice being issued. The suspension will remain in place until the offence is heard by a court. If your licence is disqualified by the court, the magistrate will consider the licence suspension in deciding the disqualification period.

Both a licence suspension and disqualification prohibit you from driving for the specified period. While a licence suspension can be imposed by the RMS or NSW Police without a formal conviction for the offence, a licence disqualification is imposed by a court as part of the penalty for a formal conviction.

 

Penalty notice

If a drug driving offence is your first alcohol or drug-related driving offence in the past five years, the police may give you a penalty notice, which requires you to pay an on-the-spot fine of $572 instead of attending court.

Paying the fine means accepting that the offence was committed, and your licence will be suspended for a period of three months. However, the offence will not be recorded on your criminal record.

 

Drug driving penalties in NSW

Drug driving is a “fine only” offence, and cannot lead to imprisonment. If you are convicted, the potential penalties include:

 

PenaltyFirst offenceSecond offence
Penalty notice fine$572N/A
Maximum fine$2,200$3,300
Licence suspension 3 monthsN/A
Minimum disqualification3 months6 months
Maximum disqualification6 monthsUnlimited
Automatic disqualification 6 months12 months

 

Consequences of a conviction

If you are convicted of drug driving, you will have this offence noted on your criminal record and have your licence disqualified.

The automatic disqualification period will apply unless the court makes a specific order. The court can disqualify your licence for any length of time within the minimum and maximum periods listed above.

These consequences can be avoided if the court applies section 10 of the Crimes (Sentencing Procedure) Act 1999

 

Traffic Offender Intervention Program

The court may give a more lenient sentence to a person who participates in the Traffic Offender Intervention Program. This program covers traffic laws and rules, and the potential consequences of breaching the laws. When the course is finished, a certificate will be sent to the court and it can be considered in determining the sentence.

 

Frequently Asked Questions

Where will the matter be heard?

Drug driving offences are heard at a Local Court before a magistrate.

How serious are drug driving charges?

A relatively recent charge, drug driving is considered to be quite important by governments seeking to combat the perceived “drug epidemic”. Although it is viewed as a serious charge, our drug driving lawyers may still be able to argue for a section 10.

The offence of drug driving is similar to drink driving, but the severity of the offence is judged differently. The amount of a drug in your system and whether you were affected by it while you were driving doesn’t matter; it is sufficient that it was detected. This is an important consideration given that some drugs, like marijuana, can remain detectable for days after ingestion.

Should I pay the penalty notice?

In some circumstances, the police may provide you with a penalty notice instead of a Court Attendance Notice. It may be easiest to deal with the charges and simply pay the fine, however there are consequences in doing so. Once you pay the fine, your licence will be suspended for three months.

You should seek legal advice before paying the penalty notice. Our drug driving lawyers can advise you whether this is the best option for you under the circumstances.

How long do drugs stay in my system for?

Drugs can be detected in a saliva sample for a long time after you use them; marijuana can stay in your system for several days. However, the exact time a drug will stay in your system depends on the type of drug, how much you took, how often you use it, and other personal factors.

Do roadside saliva tests detect prescription drugs?

No, the roadside test can only detect illegal drugs. You cannot be charged with drug driving for taking prescription medication. However, if your driving is impaired by the prescription medication, you could be charged with driving under the influence.

How can we help?

We are experienced in defending drug driving offences.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.