Drug Driving Charges in NSW: Your Complete Legal Guide

Charged with drug driving in NSW? Roadside drug testing has expanded dramatically across Greater Sydney in recent years, and the Hills District, Parramatta, Blacktown, and Penrith corridors are among the most heavily tested areas in the state. A positive roadside test — even if you feel completely unaffected — can result in a criminal charge, a licence disqualification, and a criminal record that follows you for life.

Unlike drink driving, drug driving in NSW is not about impairment. The offence is made out simply by the presence of a prohibited drug in your oral fluid or blood — regardless of how long ago you consumed it, whether you felt its effects, or whether your driving was affected at all. This is one of the most important things to understand before deciding how to respond to your charge.

What Is Drug Driving?

Drug driving is an offence under section 111 of the Road Transport Act 2013 (NSW). A person is guilty if they drive, occupy the driver's seat and attempt to put a vehicle in motion, or supervise a learner driver, while a prescribed illicit drug is present in their oral fluid or blood.

There is no threshold — any detectable presence of a prescribed drug is sufficient. You do not need to be impaired. You do not need to have used the drug recently. The offence is one of strict presence, not impairment.

Which Drugs Are Tested For?

NSW roadside drug tests currently detect the following prescribed illicit drugs:

How Does Roadside Drug Testing Work?

NSW Police conduct roadside drug testing using oral fluid (saliva) swabs, which are analysed by a testing device at the scene. If the initial test returns a positive result, a second confirmatory oral fluid sample is taken and sent to a laboratory for analysis. A formal charge is only laid once the laboratory confirms the presence of a prescribed drug.

The testing process is governed by Schedule 3 of the Road Transport Act 2013. Police must follow specific procedures when conducting both the preliminary test and the collection of the confirmatory sample. Any failure to comply with those procedures may provide grounds to challenge the evidence.

If you are also required to submit to a blood test — for example, following an accident — that sample will also be analysed for prescribed drugs.

Penalties for Drug Driving in NSW

The penalties for drug driving depend on whether it is a first or subsequent offence, and whether the charge is for presence of a drug alone or for the more serious combined drug and alcohol offence:

The combined drug and alcohol offence (section 111A) carries the same serious penalties as High Range PCA drink driving. If you have been charged with both drug driving and drink driving arising from the same incident, you face separate disqualification periods for each charge.

The Mandatory Alcohol Interlock Program

If you are convicted of the combined drug and alcohol offence under section 111A, you will be subject to the NSW Mandatory Alcohol Interlock Program at the end of your disqualification period — the same program that applies to serious drink driving convictions. An interlock device is fitted to your vehicle and prevents it from starting if alcohol is detected. This does not apply to the basic drug driving offence under section 111.

Can You Avoid a Conviction? Section 10 Dismissals

Under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may find you guilty of drug driving but decline to record a formal conviction — meaning no criminal record and no disqualification. This is a realistic outcome for first offenders with a good driving history, strong personal circumstances, and effective legal advocacy.

The court considers your age, character, criminal history, health, and the circumstances of the offence. Drug driving tends to be viewed more sympathetically than drink driving in some respects — particularly where the drug was consumed days before driving and the person had no reason to believe they were still affected.

A Section 10 dismissal or Conditional Release Order without conviction eliminates the disqualification entirely. For anyone who depends on their licence for work or family responsibilities, this is the primary goal of your legal representation.

Possible Legal Defences

There are genuine defences available in certain circumstances. Before deciding how to plead, you should always have the evidence reviewed by a lawyer. Our approach to contesting charges at a hearing is explained on our Pleading Not Guilty page.

Procedural Challenges to the Testing Process

Police must strictly follow the procedures prescribed under Schedule 3 of the Road Transport Act when conducting oral fluid tests. Any failure — including improper collection of samples, failure to comply with required timeframes, or errors in the chain of custody of the laboratory sample — may render the evidence inadmissible.

Laboratory Error or Contamination

The laboratory analysis process is not infallible. Challenges to the integrity or accuracy of the laboratory result are rare but available in appropriate cases, particularly where there are questions about the handling, storage, or analysis of the sample.

Honest and Reasonable Mistake

If you genuinely and reasonably did not know that a prescribed drug was present in your system — for example, because a substance was unknowingly added to food or drink, or because a prescribed medication caused a false positive — a defence of honest and reasonable mistake may be available. This is a narrow but genuine defence.

Passive Exposure / Prescription Medication

In very limited circumstances, passive exposure to cannabis smoke or the use of certain prescription medications may be relevant to a defence. These situations require careful analysis of the specific test results and the circumstances of exposure. Speak to your lawyer if you believe this may apply.

Drug Driving and Drug Possession

It is important to be aware that if drugs were found in your vehicle at the time of the traffic stop, you may also face charges of drug possession or potentially drug supply depending on the quantity and circumstances. These are separate criminal charges with their own penalties, and they are dealt with alongside the drug driving charge. If you face multiple charges from the same incident, getting comprehensive legal advice across all charges is essential.

What Barsha Defence Lawyers Will Do For You

When you retain us on a drug driving matter, here is what we do:

• Obtain the full police brief — including the roadside test results, laboratory confirmation, chain of custody records, and any body-worn camera footage
• Review the testing procedure for any departure from the prescribed process under Schedule 3 that may provide grounds to challenge the evidence
• Advise you honestly on your realistic prospects, including whether a Section 10 dismissal is achievable in your case
• Develop the strongest possible sentencing case — personal circumstances, licence dependency, rehabilitation steps, and character references
• Where appropriate, negotiate with NSW Police prosecutors to have charges withdrawn or downgraded before your hearing
• If you face related drug charges, advise on those simultaneously — see our pages on drug possession and drug supply
• Advise on and assist with a licence appeal if there are grounds to challenge the disqualification

We appear regularly in Parramatta Local Court, Blacktown Local Court, Penrith Local Court, Windsor Local Court, Hornsby Local Court, and Downing Centre Local Court. See the full list of courts we attend.

Frequently Asked Questions

How long after taking drugs can I be charged?

There is no time limit in the legislation — the offence is made out whenever a prescribed drug is present in your oral fluid or blood while you are driving, regardless of when you consumed it. Cannabis in particular can be detected in oral fluid for up to 12 hours or longer in regular users, even when any psychoactive effect has long passed. Do not assume that sleeping on it or waiting a set number of hours makes you safe to drive.

Does it matter that I wasn't impaired?

Legally, no. Unlike DUI (Driving Under the Influence), drug driving under section 111 does not require proof of impairment. The offence is made out purely by the presence of a prescribed drug. However, the absence of impairment is a relevant mitigating factor at sentencing and can support an argument for a Section 10 dismissal.

Can I be charged if I was a passenger who supervised an L-plater?

Yes. The offence applies not just to drivers but to anyone occupying the driver's seat and attempting to put a vehicle in motion, and to licensed supervisors of learner drivers. If you were supervising an L-plater while a prescribed drug was present in your system, you can be charged with the same offence.

What if I tested positive but the drug was from days ago?

The timing of your use is not a legal defence, but it is highly relevant to sentencing and to a Section 10 application. Evidence that you used the drug well before driving and had no reason to believe you were still affected — combined with a clean driving history and strong personal circumstances — can significantly improve your prospects of a non-conviction outcome.

I also had drugs in my car — what happens?

If police found drugs in your vehicle, you may face separate charges of drug possession or drug supply. These are dealt with alongside the drug driving charge but carry their own penalties. It is essential to get legal advice across all charges — how you deal with one can affect the others.

Can I challenge the roadside test result?

Yes, in certain circumstances. Police must strictly follow prescribed procedures when conducting roadside oral fluid tests. Any failure — including improper swab collection, failure to comply with required timeframes, or chain of custody issues with the laboratory sample — may provide grounds to challenge the evidence. Your lawyer will review the full procedure applied in your case.

What if I also had alcohol in my system?

If you had both a prescribed drug and alcohol present, you face the more serious combined offence under section 111A — which carries the same penalties as High Range PCA drink driving, including up to 18 months imprisonment for a first offence and a 3-year automatic disqualification. These two charges are dealt with separately and the disqualification periods are cumulative.

Related Traffic Offences

• Drink Driving (PCA)
• Driving Under the Influence (DUI)
• Licence Appeals
• Driving Whilst Disqualified or Suspended
• Drug Possession
• Drug Supply

The information on this page is general in nature and does not constitute legal advice. Every drug driving matter is different and outcomes depend on the specific facts. Contact Barsha Defence Lawyers for advice tailored to your situation. Liability limited by a scheme approved under Professional Standards Legislation.