Drug Driving

What is
Drug Driving?

Drug driving in New South Wales refers to operating a motor vehicle with illicit drugs present in your system or while impaired by drugs, whether illegal or prescribed. It is a serious offence under the Road Transport Act 2013 (NSW) due to the risk it poses to road safety. The types of drug driving offences include:

Presence Offence

  • Driving with any detectable amount of certain illegal drugs in your saliva, blood, or urine.

  • Common drugs tested include:

    • Cannabis (THC)

    • Methamphetamine (ice, speed)

    • MDMA (ecstasy)

    • Cocaine

  • You do not need to be impaired to be charged.

Driving Under the Influence (DUI)

  • Driving while your ability is impaired by drugs, including prescription medication.

  • Police may rely on physical observations, drug tests, and expert evidence to prove impairment.

Police conduct Mobile Drug Testing (MDT) roadside by using a saliva swab to detect the presence of illicit drugs. If the initial test returns a positive result, a secondary sample is collected and sent to a laboratory for confirmation. It’s important to note that refusing to undergo a drug test is itself a criminal offence, and it carries serious legal penalties, including fines, licence disqualification, and potentially a criminal conviction. NSW applies a zero-tolerance policy to the presence of illicit drugs while driving. Even trace amounts can result in a criminal charge—even if you are not noticeably impaired.

The Penalties of
Drug Driving

The penalties for drug driving depend on the type of offence, whether it is a first or repeat offence, and whether it involved impairment or simply the presence of drugs in the system. The penalties include:

Driving with an Illicit Drug Present (Presence Offence)

First Offence:

  • Fine: Up to $2,200

  • Licence disqualification: 3–6 months

  • Possible Criminal Record

Second/Subsequent Offence:

  • Fine: Up to $3,300

  • Disqualification: 6–12 months

  • Criminal conviction almost certain

Driving Under the Influence of Drugs (Impairment Offence)

First Offence:

  • Fine: Up to $2,200

  • Disqualification: 6–9 months

  • Imprisonment: Up to 9 months

Second/Subsequent Offence:

  • Fine: Up to $3,300

  • Disqualification: 12 months or more

  • Imprisonment: Up to 12 months

Certain aggravating factors can lead to increased penalties for drug driving offences in NSW. These include having prior convictions for drug-related or traffic offences, which indicate a pattern of dangerous behaviour. Penalties may also be more severe if the offence involved causing an accident or injury while under the influence of drugs. Additionally, driving in a school zone or with passengers—particularly children— is viewed more seriously due to the increased risk to vulnerable individuals. Finally, refusing to undergo drug testing is treated as a separate offence and can result in harsher legal consequences, including higher fines, longer disqualification periods, and a greater likelihood of a criminal conviction.

The Possible
Defence Strategies

Defence strategies for drug driving offences depend on the nature of the charge—whether it's for the presence of drugs in your system or driving under the influence (DUI). While drug driving laws in NSW follow a strict liability framework, there are still legal defences and mitigating approaches that may apply:

Challenging the Validity of the Test

  • Improper procedure by police during Mobile Drug Testing (MDT), such as failing to follow time limits or incorrect handling of saliva/blood samples.

  • Unreliable testing equipment or lab error during secondary confirmation testing.

  • Inaccuracies in the chain of custody of your sample.

Disputing Control of the Vehicle

  • Arguing that you were not driving or not in charge of the vehicle at the time of the alleged offence.

  • Example: sitting in a parked car while intoxicated, without intent to drive, may be defensible depending on the facts.

Necessity or Duress

You may argue you had to drive under extraordinary circumstances—e.g. a medical emergency or escaping immediate danger. This defence must meet strict legal criteria.

Mitigation for Sentencing

Even where no complete defence applies, a lawyer can argue for a lenient penalty based on:

  • First-time offending

  • Cooperation with police

  • Strong character references

  • Evidence of rehabilitation, such as drug counselling

  • Need for a licence for employment or family care

At Sydney Defenders, we have extensive experience handling drug driving matters, including analysing the strength of the police case, identifying flaws in procedure, and negotiating with the prosecution. Our lawyers focus on minimising penalties or avoiding a criminal conviction altogether—through options like a Mental Health Application, Section 10 dismissal, Conditional Release Order (CRO), or licence appeal.