Offence provision
Driving with illicit drugs present in your blood can cause you to receive a drug charge. Commonly referred to as “drug driving”, engaging in this activity 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:
| Penalty | First offence | Second offence |
|---|---|---|
| Penalty notice fine | $572 | N/A |
| Maximum fine | $2,200 | $3,300 |
| Licence suspension | 3 months | N/A |
| Minimum disqualification | 3 months | 6 months |
| Maximum disqualification | 6 months | Unlimited |
| Automatic disqualification | 6 months | 12 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.
