Drug Driving Offences and Penalties in New South Wales (NSW)

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Roads will become unsafe and more dangerous to use if drivers disregard laws such as the Road Transport Act 2013 (NSW).

NSW has continually amended the laws to cater for varying degrees of violations and tweaks regarding Drug Driving or DUI offences.

If an individual is convicted for a drug driving offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check.

What is Drug Driving?

Drug Driving claims are among the top spots in Driving violations and misdemeanours in Australia and worldwide. Section 112 of the Road Transport Act 2013 (NSW) describes it as a severe offence for a person with illicit drugs/substance in their body to;

• Drive a motor vehicle (irrespective of the type)
• Occupy the Driver's seat and attempt to move the vehicle (whether on public or private property)
• Supervise a learner or any other person in the Driver's seat (it is irrelevant that the person holds a driver's licence for this case).

Drug Driving is an offence that incurs severe penalties, including imprisonment terms and heavy fines. For proving a Drug Driving offence, the Police/prosecutor need to provide evidence that such prescribed substances were found in your urine, blood, or any bodily fluid required in the test.

Essentially, it does not matter whether or not the Drug intoxicated the Driver; they only have to test positive for the substance to be guilty.

What is a Driving Under the Influence (DUI) offence?

Driving under the Influence is nearly the same as a typical Drug Driving offence. However, the prosecutor must prove that the substance impaired the Driver in this case.

Also, DUI offences usually incur worse punishments compared to Drug Driving offences. It is hard for the Police to issue a warning or “on-the-spot” fine when punishing a DUI offence. The scenarios that constitute the offence usually includes where the Driver has;

• visibly lost control of the vehicle,
• swerves dangerously,
• Driving at high speed,
• Destroys some public property
• Commits other violations while driving

For a DUI offence, it is not enough that the Drug was in your system. The Police must prove that it intoxicated/affected/impaired your driving.

Penalty for Drug Driving offences

Section 112 of the Road Transport Act 2013 (NSW) describes various penalties for Drug Driving offences. While some of the stipulations provide the least possible action the court can take against offenders, it allows the court to also issue further penalties as relevant to the offence.

The offence of Driving with prescribed illicit substances

If the court proclaims you guilty as charged for driving with prescribed illegal substances, it will issue penalties up to;

First-time offenders

• $1100 in fine amounts usually addressed through penalty units,
• 6 months automatic disqualification period (3 months minimum)

Subsequent offenders

The court increases the penalty for a person who is a repeat offender or is found guilty within a short period of their earlier conviction. It is an offence that incurs as much as;

• $2200 in fine amounts,
• Automatic disqualification period of 12 months (with 6 months minimum)

Driving under the influence (DUI offences)

If the court proclaims you guilty of driving under the influence of any substance, it will issue penalties up to;

• $2200 in fine amounts,
• 6 - 12 months of a disqualification period, or
• Imprisonment terms longer than 9 months

These penalties are stipulated under section 112 of the Road Transport Act 2013 (NSW).

Subsequent offences

A second or subsequent offender, in this case, will incur severe penalties compared to a first-timer. The penalties include;

• Up to $3300 in fine amounts
• Disqualification period between 1 and 3 years, and
• Imprisonment term longer than 1 year.

On-the-Spot fines

For most drug driving cases, the Police officer may refrain from issuing a court notice or charging the Driver. The officer may issue a warning, or more likely an "on-the-spot" fine, especially if it is the Driver's first time offending. When the offender completes the fines or pays the required amount, they must also adhere to the compulsory disqualification period attached.

However, the offender can contest/protest the fine by challenging the matter at the local court. There the offence will finally be upheld, adjusted or dismissed depending on the circumstances and evidence of the case.

How does the Police conduct a Drug Driving test?

The Police are authorised to carry out sobriety tests if they suspect;

• A Driver has an illicit drug in their system,
• The Driver is under the Influence of an illegal drug.

The sobriety drug test (Mobile Drug Test) helps the Police officer to ascertain whether the Driver truly has these prescribed drugs in their system. For Drug testing, the Police officer may require the driver to undergo a;

Lick test;

The lick test confirms the presence of the Drug by testing the Driver's saliva sample. If the test returns positive, the Police officer issues a Suspension notice that lasts 24 hours, and suspends the Driver from operating a vehicle for 24 hours (as included in section 148G of the Road Transport Act 2013 (NSW).

Drug Screening equipment;

The law permits the Police officer to conduct a second test, especially if the saliva test returns positive. The second test is sent to the laboratory for confirmation and to determine;

• The amount of Drug found in the person's system,
• The type of prohibited substance
• The kind of charge the Driver will be given

Detention of Drivers/Vehicles in some instances of Drug Driving

The Police may also order them to surrender the ignition key to another licensed person in the Driver's company (s113 of the Act). The Road Transport Act 2013 (NSW) also permits the Police officer to take any lawful steps depending on the peculiarity of the matter, including;

• Temporarily suspending their licence,
• Immobilising the vehicle,
• Seizing the ignition keys until confirmation,
• Impounding the vehicle for a short period.

Also, the court can order offenders to pay any cost/expenses on any matter relating to the safekeeping of the vehicle where;

• It finds the offender guilty of the Drug Driving offence,
• Consider it a good act that the Police officer has done.

The offence of having both Alcohol and Prescribed drugs in your system while driving

The Prescribed Concentration of Alcohol (PCA) determines the maximum Alcohol concentration a Driver cannot exceed while driving. Usually, this level is determined by the person's licence type and is 0.000 for Learner's permits or other special holders.

However, it becomes a more serious charge under Section 111A of the Road Transport Act 2013 (NSW) if a person’s body fluid contains excess levels of Alcohol and Drugs, and they;

• Drive a motor/vehicle, or
• Attempt to drive a vehicle through any visibly reasonable acts,
• Supervises a learner or attempts to, and are seated beside the Driver

It is a violation that incurs up to;

• 50 penalty units in fine, or
• 2 years imprisonment, or
• Both (depending on the severity/circumstances of the offence).

For subsequent offenders, the punishments increase to;

• 100 penalty units, or
• Up to 2 years imprisonment, or
• Both (depending on the severity of the offence).

The punishments may vary depending on the severity of the offence. For example, the penalties are lesser for an offender guilty of a middle-range B.A.C (Blood Alcohol Concentration) offence than those guilty of high range B.A.C offences.

Possible Defences to Drug Driving Offences

Drug driving offences can be complicated depending on the purpose of the Drug found in the Driver. With a strong defence, the accused may successfully prove that;

• ✔ The Drug was prescribed for their health or as medicine.
• ✔ Drug usage is aligned with the dutiful and legal prescription of a pharmacy.

Will a Drug Driving offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a drug driving offence, the offence will show up as a disclosable court outcome (DCO) on the result of their Nationally Coordinated Criminal History Check in Australia.

Individuals can obtain a nationally coordinated criminal history check (NCCHC) via the Australian National Character Check - ANCC® website.

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