Sydney, Parramatta & Melbourne Criminal Defence Lawyers

Drug Driving

The offence of drug driving is found under section 111 of the Road Transport Act and states that a driver must not operate a vehicle with the presence of certain drugs (other than alcohol) in oral fluid, blood or urine.

What constitutes Drug Driving?

Drug driving is the operation or attempted operation of a motor vehicle when there is a detectable presence of a prescribed illicit drug in your system.

Section 4 of the Road Transport Act defines a prescribed illicit drug as:

  • delta-9-tetrahydrocannabinol (also known as THC);
  • methylamphetamine (also known as speed);
  • 3,4-methylenedioxymethylamphetamine (also known as ecstasy);
  • cocaine

What the police must prove

For you to be found guilty of the offence of drug driving against section 111 the police must prove that you:

  1. Drove a motor vehicle, attempted to drive a motor vehicle or are the holder of an applicable drivers licence and were occupying the front passenger seat in a motor vehicle next to a learner driver who is driving, and,
  2. You had a prescribed illicit drug present in your oral fluid, blood or urine.

Possible defences for Drug Driving

Honest and Reasonable Mistake of Fact

In theory, if you raise the issue that you honestly believed that you did not have a prescribed illicit drug in your system, it would be then for the police to prove beyond a reasonable doubt that you did not honestly and reasonably believe that you did not have a drug present in your saliva, blood or urine. In early 2016, a man was acquitted of a drug driving charge after smoking marijuana 9 days before he got behind the wheel. There seems to be a lot of conflict in the research surrounding how long a drug will stay present in your saliva after consuming it. This particular defence will more readily be accepted if you have been provided information on how long the drug stays in your system and you drove after you thought the drugs would be out of your system. If you have been charged with drug driving

Home Safe Rule

If a police officer requires you to subject to an oral fluid test at your home or in your driveway which returns a positive result for the presence of a drug, you should contact a solicitor immediately. The home safe rule states that police officers cannot require you to submit to a drug test at your home. If this does happen to you, it may be open to the court to reject the evidence of the drug test, which means there would be no evidence to find you guilty of drug driving.

Penalties for Drug Driving in NSW

The maximum penalty for an offence against section 111(1) and 111(3) is:

  • $1,100 for a first offence
  • $2,200 for a second offence

If the court decides to record a conviction for the offences then they will impose a  mandatory licence disqualification period.

For a first offence against section 111(1) and 111(3):

  • The automatic disqualification period is 6 months with a minimum disqualification period of 3 months.

For a second offence:

  • The automatic disqualification period is 12 months with a minimum disqualification period of 6 months.

For the offence of drug driving the court has a discretion as to whether they record a conviction or not. For first offenders the court most commonly will sentence an offender to be of good behaviour for a period specified by the court. This is done by way of a Conditional Release Order without conviction.

The range of penalty that the courts can impose are as follows:


Where a monetary penalty is prescribed under legislation the court is able to finalise matters by way of fine. This normally is a reflection that the type of offending is of lower objective seriousness but that some form of penalty must be imposed.

Conditional Release Order

Conditional Release Orders (CRO) are often used to deal with first time offenders and less serious offences where the offender is unlikely to present a risk to the community.

A CRO is an order of the court that you are to be of good behaviour (not commit any other offences) for a specific period of time.

CROs can include conditions such as drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. Courts have discretion to not impose a conviction on a CRO, if they consider it appropriate. CROs can be for a maximum period of 2 years.

The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.

Community Correction Order

Community Correction Orders (CCO) are used to punish offenders for offences that do not warrant imprisonment or an Intensive Corrections Order, but are too serious to be dealt with by a fine or lower level penalty.

CCO’s are a flexible sentence that the court can tailor to reflect the nature of the offender and the offence. The court can select from the range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.

Intensive Corrections Order

An Intensive Corrections Order (ICO) is a custodial sentence that the court decides can be served in the community. Community safety is the court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.

Supervision is a mandatory condition of an ICO. Further the Courts must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.

The ICO is the most serious sentence that an offender can serve in the community. ICOs are not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.

A person convicted of a domestic violence offence can only be sentenced to an ICO if the court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.

Full Time imprisonment

Full Time imprisonment is the most serious penalty a court can impose. The sentence involves a period of time that will be spent inside an NSW correctional centre. When imposing a full time custodial sentence in most circumstances the court will apply a Non-Parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the Non-Parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.

Book a Free Consultation for a Supply of a Drug Driving charge

If you are facing a drug driving charge, you can lose your licence. Many unsuspecting persons can be caught out for a drug driving offence as well. It is highly recommended you engage First Offence Legal. We can discuss your options with you and advise you on the potential outcomes in your case, and help you every step of the way.

If you or anyone you know has been charged with a drug driving offence, you should contact First Offence Legal and book a free no obligation consultation. Remember you should always make First Offence Legal your First Defence.

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