Drug Driving NSW: What Happens If You Fail a Roadside Drug Test

By Michael Barsha, Principal Lawyer at Barsha Defence Lawyers · March 2026

What Happens When You Fail a Roadside Drug Test in NSW

If you have just failed a roadside drug test in NSW, you are probably searching for answers. What happens next? Will you lose your licence? Do you need to go to court? Can you still drive while waiting for the lab results? A drug driving NSW charge is one of the most common traffic offences dealt with in Local Courts across the state, and the process that follows a positive roadside test is confusing for most people who have never been through it before.

This guide explains the full process from the moment police pull you over to what happens at court. It covers the penalties for drug driving NSW law imposes, your options for avoiding a conviction, and the defences that may be available depending on your circumstances. If you are already facing a drug driving charge, contact our team for a free consultation before your court date.

How Roadside Drug Testing Works in NSW

NSW Police conduct Mobile Drug Testing operations across the state, often alongside Random Breath Testing for alcohol. According to NSW Police, MDT operations are run on major highways, arterial roads, and in entertainment precincts across all Local Area Commands. Police can stop any driver at a designated testing site or during a general traffic stop. You do not need to be driving erratically or showing signs of impairment. The power to conduct these tests comes from the Road Transport Act 2013.

The initial test is a saliva swab, sometimes called a “lick test.” You are asked to drag a testing device across your tongue. The device produces a preliminary result within a few minutes. If the result is negative, you are free to go. If the result is positive, a second test is carried out on the spot.

Drug driving NSW charges depend on what happens at the laboratory stage, not the roadside test alone. The roadside result is a screening tool. The formal charge comes only after lab confirmation.

What Drugs Does the Test Detect?

The roadside saliva test used in drug driving NSW operations currently detects four substances:

The roadside test does not detect heroin, prescription medications, or benzodiazepines. That said, if police suspect you are impaired by any drug, including prescription medication or any substance listed under the Drug Misuse and Trafficking Act 1985, they can still charge you with driving under the influence under section 112 of the Road Transport Act 2013. That is a more serious charge that requires the prosecution to prove actual impairment.

The critical point about drug driving NSW law is that the standard offence under section 111 of the Road Transport Act 2013 is a presence offence. The prosecution does not need to prove you were impaired. It only needs to prove that a prescribed illicit drug was present in your saliva, blood, or urine. This means you can be convicted of drug driving NSW even if you used the substance days earlier and felt completely fine when you were behind the wheel.

Step by Step: What Happens After a Positive Test

Drug Driving NSW Penalties

The penalties for drug driving NSW courts impose depend on whether it is a first or subsequent offence, and whether the charge is for drug presence under section 111 or driving under the influence under section 112.

Section 111 – Drug Presence Offence (At Court)

Section 112 – Driving Under the Influence of a Drug

Drug driving NSW penalties are significant. Even a first-time drug presence offence carries an automatic licence disqualification of 6 months. The only way to avoid any disqualification is to have the matter dealt with without a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999.

Penalty Notice vs Going to Court

For a first-time drug driving NSW offence under section 111, police now have the option of issuing a penalty notice instead of sending the matter to court. The NSW Government sets the penalty notice at a $682 fine and an automatic three-month licence suspension.

If you accept the penalty notice, you pay the fine, serve the suspension, and the matter is dealt with without a court appearance. Once the fine is paid or an overdue notice is issued, Transport for NSW will suspend your licence for three months.

You have the right to elect to go to court instead. Going to court opens the possibility of a section 10 dismissal or a conditional release order without conviction, which would mean no fine and no licence disqualification. It also opens the possibility of a worse outcome, including a higher fine and a longer disqualification. The decision to accept the penalty notice or go to court is one you should make with legal advice. Call our drug driving NSW lawyers on 0474 708 070 to discuss your specific situation before deciding.

Can You Avoid a Conviction for Drug Driving NSW?

Yes. A section 10 dismissal is available for drug driving NSW offences. If the court grants a section 10, you are found guilty but no conviction is recorded. Because there is no conviction, the court has no power to impose a licence disqualification. This is the best possible outcome for anyone facing a drug driving NSW charge.

Whether a section 10 is achievable depends on several factors the court will consider:

The nature of the offence, including what drug was detected and the circumstances of the test. Your personal character, age, health, and mental condition. Whether you have any prior traffic or criminal history. The impact a conviction and licence loss would have on your employment, family responsibilities, and daily life. Any steps you have taken since the offence, such as completing a Traffic Offenders Intervention Program or attending drug counselling through services like NSW Health.

Our drug driving NSW lawyers prepare detailed submissions that cover each of these factors with supporting evidence. The difference between a conviction with a six-month disqualification and a section 10 dismissal with no conviction and no disqualification comes down to the quality of the material placed before the magistrate.

How Long Do Drugs Stay in Your System?

This is one of the most important questions in any drug driving NSW matter. The roadside saliva test detects the presence of a drug, not impairment. Different substances remain detectable for different periods after use:

These are general estimates. Individual results vary based on the amount consumed, frequency of use, metabolism, and overall health. Data from the NSW Bureau of Crime Statistics and Research shows drug driving NSW cases have increased sharply since the expansion of Mobile Drug Testing, and cannabis is by far the most common drug detected for exactly this reason. The Local Court deals with thousands of these charges every year.

Defences to Drug Driving NSW Charges

Drug driving NSW offences under section 111 are strict liability, meaning the prosecution only needs to prove the drug was present. There is no need to prove impairment. That limits the available defences, but there are still grounds on which charges can be challenged:

Time limits on sample collection. Police must collect the oral fluid sample within two hours of the roadside test. If the sample was taken outside this window, the evidence may be inadmissible. Our drug driving lawyers review the timeline of every test to check whether this requirement was met.

Procedural errors in testing. The testing process involves strict protocols for handling, labelling, sealing, and transporting samples. Failure to follow these protocols can compromise the reliability of the result.

Medicinal use defence. Under section 111 of the Road Transport Act 2013, it is a defence if the substance was a drug prescribed by a medical practitioner taken according to the prescription, or a codeine-based medicine purchased from a pharmacy taken according to the manufacturer’s instructions. This defence does not apply to THC, methamphetamine, MDMA, or cocaine. Legal Aid NSW provides general information about this defence, but you should get advice from a specialist drug driving NSW lawyer about how it applies to your case.

Honest and reasonable mistake of fact. In limited circumstances, a defence may be available if you genuinely and reasonably believed no drug was present in your system. This is difficult to establish for drug driving NSW charges but has succeeded in reported cases involving cannabis where the accused had not used the drug for an extended period before driving.

If you believe there is a defence available in your drug driving NSW matter, contact our team to discuss it before your court date. We review the prosecution brief, the lab certificate, and the testing timeline to identify any weaknesses.

What Happens If You Refuse a Drug Test?

Refusing a roadside drug test in NSW is a separate criminal offence and carries penalties that are worse than testing positive. The maximum fine for refusing or failing to provide a sample is $3,300 and a licence disqualification of 6 months for a first offence. If you genuinely cannot provide a saliva sample, you can submit to a blood test instead. Failing to provide a blood test also carries the same penalties.

Under drug driving NSW law, you are required to comply with police directions during testing. Our advice is always to comply with the test. If you believe the test was conducted improperly, that is something your criminal lawyer can challenge at court.

Combined Drink and Drug Driving

If police detect both alcohol and a prescribed illicit drug in your system, you face a combined drink and drug driving offence under section 111A of the Road Transport Act 2013. These offences were introduced in 2021 under what is sometimes called the “Four Angels Law” and carry significantly higher penalties than either offence alone.

A first combined offence involving a high-range blood alcohol reading and drug presence carries a maximum penalty of 30 penalty units or 12 months imprisonment. A second offence carries up to 50 penalty units or 18 months imprisonment. The licence disqualification periods are also much longer.

If you are facing a combined drug driving NSW and drink driving charge, the stakes are high and you need specialist advice immediately. Call 0474 708 070.

Licence Loss and Hardship

For most people charged with drug driving NSW, the licence disqualification is the most painful part of the penalty. Losing your licence for three to six months, or longer for repeat offenders, can mean losing your job, being unable to drive children to school, missing medical appointments, and losing independence entirely.

This is especially true for clients in areas with limited public transport. Many of the drug driving NSW matters we handle involve clients from Blacktown, Penrith, Windsor, Mount Druitt, and the Central Coast, where driving is essential for daily life.

When a conviction and disqualification cannot be avoided, our drug driving NSW lawyers prepare detailed hardship submissions asking the court to reduce the disqualification toward the statutory minimum. When the material supports it, we push for a section 10 dismissal or conditional release order without conviction, which removes the disqualification entirely. We also handle licence appeals for clients seeking early reinstatement through Service NSW and the court.

Frequently Asked Questions

Charged With Drug Driving NSW?

At Barsha Defence Lawyers, traffic law and criminal law are all we do. Whether you need advice on a drug driving NSW penalty notice, want to challenge the charge at a defended hearing, or need a guilty plea prepared to get you the best outcome, we will give you an honest assessment and fight for the strongest possible result.

We appear at drug driving NSW matters at Parramatta, Blacktown, Penrith, Liverpool, Burwood, Gosford, Wyong, and every other NSW Local Court.

• ✅ FREE initial consultation – understand your drug driving NSW options before committing
• ✅ Specialist traffic and criminal defence lawyers – it is all we do
• ✅ Available 24/7 for arrests, bail, and urgent matters
• ✅ Fixed fees – transparent pricing with no hidden costs
• ✅ Appearing at all NSW Local Courts – see our full list of courts

Parramatta Office: Suite 48 Level 1/93 George St, Parramatta NSW 2150
Norwest Office: 4 Columbia Court, Norwest NSW 2153 (FREE parking)
Phone: 0474 708 070
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Disclaimer: This article provides general information only and does not constitute legal advice. Drug driving NSW cases are highly fact-specific. Outcomes depend on individual circumstances. Past results do not guarantee future outcomes. If you need legal advice, contact Barsha Defence Lawyers for a confidential discussion about your matter.