Drug Driving in NSW

The Offence

Drug Driving charges are taken very seriously by NSW Courts. If tested positive for drugs whilst driving, a number of different factors are taken into consideration, including what type of drug is in your system, whether you are affected by the drug at the time of driving, your compliance with drug testing procedures, whether you have been involved in an accident and of course your prior driving history. Drug offence lawyers Sydney can help you with your charge and case.

There are a large range of drug driving related charges that can be applied by police, however, the six main drug driving offences that you can be charged with under New South Wales state laws are:

1. Presence of certain drugs (other than alcohol) in oral fluid, blood or urine;

2. The offence of driving under the influence of drugs;

3. Refusal or failure to undergo a drug test;

4. Wilfully altering the amount of drug before submitting an oral fluid test;

5. Failure to provide blood or urine sample by driver or supervisor involved in a fatal accident;

6. Failure to provide a blood or urine sample or alter the result of the drug in blood prior to testing.

Types of Prohibited Drugs

A number of different types of drugs are strictly prohibited from being found in a person’s blood, saliva or urine, the main substances include:

  • THC (Delta-9- tetrahydrocannabinol) – better known as cannabis or marijuana.
  • Methamphetamine – better known as speed or ice.
  • Methylenedioxymethylamphetamine – better known as MDMA or ecstasy.
  • Morphine
  • Cocaine

Note that explicitly THC, ice, and amphetamine are currently testable in random roadside drug tests, with cocaine to be testable very shortly also.

NSW Police are out there on our roads setting up random drug testing every day of the week, submitting oral fluid tests for drugs. Caution should be taken by drug users and/or experimenters since the presence of different types of drugs can often be found in a person’s saliva, blood or urine many hours and sometimes days after consuming the drug. Cannabis is possibly one of the most widely used illegal drugs yet it is one of the longest lasting drugs which can be found present in one’s body after many days if not weeks after consumption. For this reason, people need to be aware of the various substances that they may consume may very well be present in their system long after the effects of the drug has worn off. If you are unsure of any offences, get in contact with our specialist Sydney Driving Defence Lawyers at ZD Legal.

If you have been charged with any of the above drug driving charges then we strongly advise you to contact our office today to get an experienced and qualified drug driving lawyer on your case.

The Penalty

NSW Courts take drug driving charges very seriously and there are automatic and minimum disqualification periods that the Magistrate will likely hand down should you be charged with any of those drug driving offences.

Your first step should be to talk to an experience Sydney drug driving lawyer.

Initially, you will receive the automatic disqualification period, unless and until you are able to show the court that there are extenuating circumstances surrounding the charges, in which case you may be able to convince the Magistrate you deserve only the minimum disqualification period. Note that there is no way around avoiding the minimum disqualification period unless you plead not guilty and are successfully acquitted of the offence. You will require accurate legal representation from a specialist drug driving lawyer to help you with your case.

A court does have the discretion to dismiss the offences pursuant to section 10 of the Crimes (Sentencing Procedure) Act in very rare circumstances.

1ST DRUG DRIVING OFFENCE WITHIN 5 YEARS:

Maximum FineMaximum JailAutomatic disqualificationMinimum disqualification
Prescribed illicit drug in oral fluid/blood/urine$1,100Nil6 months3 months
Cocaine or Morphine in blood/urine$1,100Nil6 months3 months
DUI drug$2,2009 months12 months6 months
Refuse undergo oral fluid test$3,300Nil3 years6 months
Refuse to supply blood sample$3,300Nil3 years6 months
Alter amount of drug before oral fluid test$3,300Nil3 years6 months
Driver involved in fatal accident fail to supply blood/urine sample:$3,30018 months3 years6 months
Fail on demand to provide sample of blood/urine$3,30018 months3 years6 months


2ND DRUG DRIVING OFFENCE WITHIN 5 YEARS:

Maximum FineMaximum JailAutomatic disqualificationMinimum disqualification
Prescribed illicit drug in oral fluid/blood/urine$2,200Nil12 months6 months
Cocaine or Morphine in blood/urine:$2,200Nil12 months6 months
DUI drug$3,30012 months3 years12 months
Refuse undergo oral fluid test$5,50018 months5 years12 months
Refuse to supply blood sample$5,50018 months5 years12 months
Alter amount of drug before oral fluid test$5,500Nil5 years12 months
Driver involved in fatal accident fail to supply blood/urine sample$5,5002 years5 years12 months
Fail on demand to provide sample of blood/urine$5,5002 years5 years12 months

If you have been charged with any of the above drug driving charges then we strongly advise you to contact our office today to get an experienced and qualified Sydney drug driving lawyer on your case.

Can I Defend the Charge?

Presence of Drugs in Oral Fluid

Drug driving charges can be difficult to defend but not impossible, and a section 10 is also available to drug driving charges, provided it is your first offence in the last 5 years. Certain available defences (including new and novel defences) include Duress, Necessity, Emergency, Factual Dispute regarding the alleged reading, or most notably procedural disputes and technical errors, both with the procedure at the time and afterwards with the documentation compliance.

In certain circumstances there may be a defence if you are prescribed certain medications which may have an interaction or interference with the substances that show up on the devices. Additionally, you may also have a defence if you believe the test should not have been positive or if you have any belief that the first test should or could have been negative.

Due to certain procedural issues within the police at this time, we strongly recommend you to get in touch with our expert Driving Defence Lawyers Sydney if you have any doubt whatsoever regarding the reading obtained on the Preliminary Oral Fluid Test. Note that even if the secondary test was positive, it is still possible for the preliminary test to have been negative and we can run this defence strongly for you.

It is very important that you seek legal advice regarding your offence if you have any questions or concerns about whether you might have a defence to your charge of drug driving.

Refusal Charge

A refusal charge carries a penalty of six months mandatory loss of licence if convicted. Unlike a drink driving charge, this charge has a mental element (mental element / conscious awareness). That must be proven which many people are not aware of how to defend. These are very complex matters to defend. With such a heavy penalty for a conviction, it is imperative you seek legal advice to understand whether procedure was followed in the provision of the requirement on you to give a sample of breath.

Some defences to a refusal charge include Improper or Unreasonable Requirement, Factual Dispute, Confusion or Misunderstanding, Reason of Substantial Character, Mental Capacity, or other Procedural Irregularities.

An additional defence to a refusal charge involving drug driving may apply if you have undertaken the preliminary oral fluid test, but have refused the secondary test. If this is the case, you should get in contact with us at your earliest opportunity to discuss your options.