Drug Driving In New South Wales

In New South Wales, a person does not have to be impaired by drugs to be charged with a drug driving offence. A person can be found guilty of an offence simply because they were driving with a prescribed drug present in their system. The two main offences of drug driving in New South Wales are driving under the influence of drugs and driving with an illicit substance present in the body.

Driving under the influence

The offence of driving under the influence of a drug is set out in section 122 of the Road Transport Act. For the court to find a person guilty of this offence, prosecution must prove two elements beyond a reasonable doubt.

Firstly, the driver was affected by alcohol and/or illicit substances.

Secondly, that they were driving, attempting to put a vehicle in motion, or supervising a learner driver at the time of the positive test.

Police can require a driver to submit to a ‘sobriety assessment’ to ascertain whether or not they are driving under the influence if they are unable to conduct a breath analysis.

Driving with an illicit substance present

The offence of driving with a prescribed illicit drug present in the body is set out in section 111 of the Road Transport Act. For a person to be found guilty of this offence,  prosecution does not need to prove that the person’s driving was impaired by a drug at the time of the offence. A person can be found guilty of this offence if they were driving or attempting to do so with an illicit substance present in their body.  

The drug presence test consists of the driver being required to undergo a roadside ‘lick test’ where a sample of their saliva is taken. If a positive result is returned, police will issue a Notice of Suspension, prohibiting the driver from driving for 24 hours (Section 148G). Police can also require the driver to hand over their ignition key to either the police themselves, or to another person in their company. Attending police are also authorised to take any other steps they believe are necessary to immobilise the vehicle by removing and/or detaining it. This is to ensure the driver does not breach the Suspension Notice.

Drug Driving Penalties in New South Wales

Penalties for drug driving differ depending on the offence and on the person’s driving record. The penalties available to the court for drug driving offences in New South Wales are set out in the table below.

While the penalties listed above set out a regime of minimum penalties, the court has other sentencing options available.

Section 10 orders

Under some circumstances, New South Wales magistrates have the discretion to deal with drug driving offences under Section 10 of the Crimes (Sentencing Procedure) Act 1999. This section gives the magistrate has the power to (a) dismiss the charge; (b) order the person to serve a good behaviour bond up to two (2) years; or (c) order the offender into a rehabilitation program. If the court chooses to sentence a person under this provision, the offender may avoid having a finding of guilt recorded against them, and incurring the mandatory minimum penalties, including licence disqualification.

There are some limitations on how this section can be applied. Magistrates cannot apply it twice to the same offender within a five-year period. However, magistrates considering a petition to apply section 10 will take into account the offender’s criminal and driving records, the circumstances surrounding the offence (such as whether anyone was harmed), and any other material before the court including any voluntary steps the offender has taken to rehabilitate, such as attending a Traffic Offender Program or Narcotics Anonymous meetings.

Defences to drug driving charges

If a person has been charged with a drug driving offence, he or she must decide whether to plead guilty or not guilty. While most people charged with drug driving plead guilty, some defendants have successfully defended these charges by relying on one of a range of defences, such as honest and reasonable mistake or sudden and extraordinary emergency.

One driver who relied on the defence of honest and reasonable mistake was told by a police officer in May 2015, during a roadside drug test, that he should wait a week after smoking cannabis before driving if he wanted to avoid being charged under section 111 or 112 of the Act. Following this advice, the driver waited nine days after ingesting cannabis before driving. However, when he was subjected to a roadside drug test, it returned a positive result, and he was charged. He told the court that he had relied on the advice of the police officer, and Magistrate Heilpern set the charge aside.

The defence of sudden and extraordinary emergency could be relied on if the accused was driving because of an emergency – for example, to get a seriously injured person to hospital.

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