Drug Driving
What is
Drug Driving?
A drug driving offence in New South Wales occurs when a person drives a motor vehicle with illicit drugs present in their system, or while affected by drugs, in violation of road safety laws under the Road Transport Act 2013 (NSW). The types of drug driving offences include:
Presence Offence – s111
Driving with the presence of an illicit drug in your oral fluid, blood, or urine (e.g. cannabis, MDMA, methamphetamine, cocaine).
This can be detected through roadside oral fluid (saliva) testing.
Driving Under the Influence (DUI) – s112
Driving while actually affected by a drug, which may be observed through erratic behaviour, physical signs, or impairment in driving ability.
This is a more serious offence and usually involves police observations and blood/urine testing.
Common illicit drugs tested in drug driving offences include cannabis (THC), methamphetamine (ice or speed), MDMA (ecstasy), and cocaine.
A zero-tolerance policy applies to drug driving offences, meaning that the presence of any amount of a listed drug in your system can result in a charge, even if you are not visibly impaired. In fact, you do not need to show overt signs of impairment to be charged under the presence offence. Additionally, if prescription medications adversely affect your ability to drive safely, you can also be subject to charges under driving under the influence provisions.
The Penalties of
Drug Driving
The penalties for drug driving depend on the specific type of offence, whether it is a first or repeat offence, and whether it involves merely the presence of drugs or actual impairment while driving. The penalties may include:
Driving with Presence of Illicit Drug (Presence Offence – s111)
This offence applies when drugs are detected in your saliva, blood, or urine, even if you are not impaired.
First Offence:
Fine of up to $2,200
Licence disqualification: Minimum 3 months (up to 6 months)
Second or Subsequent Offence:
Fine of up to $3,300
Licence disqualification: Minimum 6 months (up to 12 months)
Driving Under the Influence of a Drug (DUI – s112)
This is a more serious offence involving actual impairment by drugs while driving.
First Offence:
Fine of up to $3,300
Imprisonment: Up to 18 months
Licence disqualification: Minimum 6 months (up to unlimited disqualification)
Second or Subsequent Offence:
Fine of up to $5,500
Imprisonment: Up to 2 years
Licence disqualification: Minimum 12 months
In addition to fines, licence disqualification, or imprisonment, drug driving offences can lead to several long-term consequences. A criminal conviction may be recorded, which can affect future opportunities, including employment and travel. Car insurance premiums often increase significantly following a conviction. For repeat offenders, the court may impose interlock orders, requiring the installation of a breath-testing device in the vehicle. Moreover, a drug driving offence can seriously impact employment, particularly in roles that involve driving or require a clean criminal record, highlighting the importance of obtaining legal advice when facing such charges.
The Possible
Defence Strategies
Possible defence strategies for drug driving offences depend on the type of charge (presence offence or DUI) and the circumstances of the case. A successful defence may lead to the charge being withdrawn, downgraded, or dismissed in court. Common defences include:
Honest and Reasonable Mistake
If the accused genuinely and reasonably believed they were not affected by or did not have drugs in their system (for example, due to unknowingly consuming a spiked drink or misunderstanding how long a drug stays in the body), this may be raised as a defence for presence offences.
Challenging the Validity of Drug Testing
Defences can be based on errors in testing procedures, such as:
Faulty testing equipment
Contaminated samples
Improper sample handling or storage
Failure to follow correct police procedures
If there is a flaw in how the test was conducted, the results may be excluded as evidence.
Unlawful Search or Stop
If police did not have a lawful basis to stop the vehicle or conduct the drug test (e.g. no reasonable suspicion or improper roadside stop), the defence may argue the evidence was obtained unlawfully and seek to have it ruled inadmissible.
Delay Between Driving and Testing
If there was a significant delay between when the person was driving and when the sample was taken, the results may not accurately reflect the presence of drugs at the time of driving. This can weaken the prosecution’s case.
Mental Health Defence
Argues the accused was suffering from a mental illness at the time of the offence and did not understand the nature or wrongfulness of their actions.
May result in a special verdict of not guilty by reason of mental illness and diversion to a mental health facility.
Drug driving matters often hinge on the accuracy of testing methods, the lawfulness of police procedure, and the personal circumstances of the accused. At Sydney Defenders, our experienced criminal defence lawyers conduct a thorough review of the evidence, identify procedural flaws, and challenge any weaknesses in the prosecution’s case. We provide realistic advice and develop tailored defence strategies that give each client the best possible chance of a successful outcome. With access to an exclusive network of respected barristers and a dedicated legal team, Sydney Defenders is committed to protecting your licence, your record, and your future.