If you have been charged with drug driving in NSW, you are facing a criminal offence that carries fines, licence disqualification, and in some cases, imprisonment.
Drug driving in NSW is governed by sections 111 and 112 of the Road Transport Act 2013. The law draws a clear distinction between two types of drug driving offences — one based on the mere presence of illegal drugs, and the other based on actual impairment. This distinction matters because the penalties and available defences differ significantly between the two.
Section 111 makes it an offence to drive a motor vehicle with any prescribed illicit drug present in your oral fluid, blood, or urine. This is a strict liability offence — the prosecution does not need to prove that the drug impaired your driving ability. If illicit drugs are present in your system, and you are driving, that alone is enough for a conviction.
The five drugs currently detected by NSW Police roadside drug testing are:
A critical issue with this offence is that THC can remain detectable in oral fluid for up to 12-24 hours after use. This means you can be caught driving with drugs in your system even if you consumed cannabis the previous day and feel completely unimpaired. The law does not require proof of impairment — only the presence of the prescribed concentration of the substance.
Section 112 is the more serious drug-related driving offence. The prosecution must prove that your ability to drive was actually impaired by a drug — any drug, including prescription drugs and over-the-counter medications. Unlike section 111, this offence is not limited to the five illicit drugs detected by roadside testing.
If a police officer observes signs of impairment, such as swerving, slurred speech, or impaired coordination, they can require you to submit to a blood test or urine test. A conviction under section 112 carries significantly harsher penalties, including the possibility of imprisonment even for a first offence.
The key difference is this: Section 111 requires only presence. Section 112 requires proof of actual impairment. If you are facing either charge, speak with our team immediately.
Where both alcohol and drugs are detected, the combined drink and drug driving offence attracts significantly harsher penalties. This can occur when a breath analysis or alcohol test reveals the presence of alcohol alongside a positive roadside drug test.
The prosecution can charge you with a combined offence under the Road Transport Act 2013, which carries higher maximum fines, longer disqualification periods, and a greater likelihood of imprisonment. If your blood alcohol concentration exceeds the prescribed concentration of alcohol and you also test positive for illicit drugs, you face some of the most severe penalties available under NSW traffic law.
NSW Police conduct mobile drug testing (MDT) operations across the state, often alongside random breath testing (RBT) sites. Understanding the roadside drug test process is important because procedural errors by police can form the basis of a defence.
The process follows a strict sequence established under the Road Transport Act 2013:
At any point during this process, you have the right to request that a blood sample be taken for independent testing. This can be important evidence if you wish to challenge the results.
NSW Police roadside drug testing detects five prescribed illicit drugs:
Prescription medications — including benzodiazepines, opioids, and medicinal cannabis — are not detected by the roadside oral fluid test. However, if any drug or other substance impairs your driving, you can still be charged with DUI under section 112.
It is important to understand that the roadside drug test detects only these five illicit drugs. Other drugs, including many illegal drugs and prescription medications, will not trigger a positive result on the saliva swab. That said, impairment from any substance can lead to charges.
Drug driving penalties vary depending on the type of offence (section 111 vs section 112), whether it is a first offence or a second or subsequent offence, and whether the matter is dealt with by penalty notice or in the local court. The penalties are set out in the Road Transport Act 2013 and are measured in penalty units, which are periodically adjusted.
Penalty | First Offence | Second or Subsequent Offence |
Penalty notice fine | $572 | N/A |
Maximum court fine | $2,200 (20 penalty units) | $3,300 (30 penalty units) |
Imprisonment | N/A (fine only) | N/A (fine only) |
Automatic disqualification period | 6 months | 12 months |
Minimum disqualification | 3 months | 6 months |
Maximum disqualification | 9 months | Unlimited |
If you are found guilty or pay the penalty notice, your driver’s licence will be suspended for the relevant period. Paying the penalty notice results in a 3-month licence suspension but no criminal record. Going to court may result in a criminal record, but it also opens the possibility of a Section 10 dismissal — in which the court orders the charge dismissed without recording a conviction.
Note that for a learner driver or provisional licence holder, the consequences may be more severe. The automatic disqualification applies unless the court orders otherwise.
Penalty | First Offence | Second or Subsequent Offence |
Maximum court fine | $3,300 (30 penalty units) | $5,500 (50 penalty units) |
Maximum Imprisonment | 18 months | 2 Years |
Automatic disqualification period | 3 Years | 5 Years |
Minimum disqualification | 12 months | 2 Years |
Maximum disqualification | Unlimited | Unlimited |
DUI is a significantly more serious driving offence than a section 111 charge. The maximum penalty includes imprisonment, and the automatic disqualification periods are substantially longer. A mandatory interlock program order applies if alcohol is also involved (combined drink and drug driving).
The distinction among automatic, minimum, and maximum disqualification is important. The automatic disqualification period applies unless the court specifically orders a different period. Your lawyer can argue for the minimum disqualification based on your circumstances, or the court may impose a period up to the maximum disqualification.
If you have received a penalty notice for a first offence section 111 drug driving charge, you face a critical decision: accept the on-the-spot fine or elect to have the matter heard in the local court.
Paying the penalty notice means:
Going to court means:
The right decision depends on your personal circumstances, driving history, employment situation, and other personal factors. If a criminal record or longer suspension period would have a significant impact on your life, going to court may be worth the risk. Always seek legal advice before paying or contesting a penalty notice.
When you test positive on a roadside drug test, NSW Police can immediately suspend and confiscate your driver’s licence within 48 hours. This immediate licence suspension takes effect on the spot — you cannot drive your motor vehicle home from the testing site.
The suspension remains in effect until the matter is finalised in court or, if you pay the penalty notice, for the relevant suspension period.
It is important to understand the difference between a suspension and a disqualification:
The court takes into account time already served under the immediate licence suspension when setting the final disqualification period. This means the time you spend unable to drive before your court date is not wasted — it counts toward your total disqualification.
While drug driving charges carry harsh penalties, defences are available depending on the specific circumstances of your case. An experienced criminal lawyer can assess which defence may apply to your situation.
NSW Police must follow strict procedures when conducting roadside drug tests under the Road Transport Act 2013. If these procedures were not followed correctly, the charge may be challenged. Examples include:
A specific statutory defence exists under section 111 for morphine detected in your system. If the morphine was prescribed by a medical practitioner and you took it as directed, you have a complete defence to the charge.
This defence does not extend to other drugs detected by roadside testing and does not apply to section 112 DUI charges. It is currently the only prescription medication defence available under section 111.
This defence applies where you honestly and reasonably believed you did not have drugs in your system. It is most relevant where consumption was unknowing — for example, if your food or drink was spiked without your knowledge.
Simply misjudging how long ago you consumed a drug, or believing that the drugs had cleared your system, is generally not sufficient to establish this defence. The belief must be both honest and reasonable in the circumstances.
For DUI charges under section 112, the prosecution must prove actual impairment of your driving ability. Defences may include:
Under Section 10 of the Crimes (Sentencing Procedure) Act 1999, the court may dismiss a drug driving charge without recording a conviction. This means no criminal record — it is the best possible outcome if you have been charged with a drug driving offence.
When deciding whether to grant a Section 10, the court considers factors including:
Completing the Traffic Offender Intervention Program before your sentencing date significantly strengthens a Section 10 application. This program demonstrates to the court that you have taken proactive steps to address the behaviour that led to the offence.
Speak to our criminal and traffic lawyers now for expert legal advice and representation.
Speak to our criminal and traffic lawyers now for expert legal advice and representation.
Defending charges of drink driving and drug driving, including licence disqualification.
Representation for negligent driving occasioning grievous bodily harm or death.
Fighting demerit point losses, licence suspensions, and fines for speeding charges.
Danegerous driving occasioning death or grievous bodily harm, including serious criminal charges.
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