Drug Driving Charges in NSW

What the charge actually is — presence, not impairment

Road Transport Act 2013 (NSW), s 111: it is an offence to drive with the presence of a prescribed illicit drug in your oral fluid, blood or urine. The prosecution does not have to prove the drug affected your driving in any way.

This is the single most misunderstood thing about drug driving in NSW, so it is worth stating plainly: the offence is presence-based, not impairment-based. Unlike drink driving — which is built on a reading and a set of bands — the section 111 charge asks only one question: was a prescribed illicit drug detectable in your sample. How you were driving, whether you felt any effect, how long ago you used — none of that is part of the offence. It either was present or it was not.

That design is why the questions people most want answered — how long a drug stays detectable — turn out to be the wrong questions to plan around, and why the real defence work sits somewhere else entirely: in the testing procedure, the certificate, and your licence.

How long does cocaine stay in your system for a roadside test?

This is the most-searched drug driving question in NSW, so here is the factual answer first. Roadside oral-fluid (saliva) tests typically detect cocaine for roughly 24–48 hours after use, MDMA for roughly 24–72 hours, and methylamphetamine across a broadly similar-to-longer window — while THC (cannabis) can be detected well beyond any period of impairment, sometimes days later. Every one of those ranges varies widely with the person, the amount, the frequency of use and the device.

Now the part that actually matters: the detection window is the wrong thing to rely on. Because the offence is presence-based, and because the windows are so variable that no one can reliably predict when they will test clean, there is no safe interval to count on — the only legally safe position is not to drive after using an illicit drug at all. And if you have already returned a positive test, the detection window is behind you and irrelevant; the live questions become whether the testing and analysis were done to procedure, what the certificate proves, and what happens to your licence. Those are the questions this page — and a defence — are actually built around.

What roadside drug testing tests for — and how it works

NSW mobile drug testing (MDT) screens oral fluid for a defined set of illicit drugs: THC (cannabis), methylamphetamine, MDMA and cocaine. It does not test for many other substances, and it is not a measure of how affected you are — only of presence.

The procedure runs in stages, and each stage is a point where things can go wrong:

• An initial roadside screening test of oral fluid;
• If positive, a second oral-fluid test at the roadside or in a testing vehicle;
• If that is also positive, the sample is sent for laboratory analysis, and it is the laboratory certificate — not the roadside device — that the prosecution relies on in court;
• A certificate of analysis is then issued and served as the evidence of the offence.

The roadside devices are screening tools, not courtroom-grade proof, and the case ultimately stands on the laboratory certificate and the integrity of the process behind it — the handling of the sample, the timing, the chain of custody, and whether the certificate says what the prosecution needs it to say. Testing whether the procedure was followed properly is the first thing worth doing in a presence charge, before any plea is entered.

Penalties and your licence

A first presence offence under section 111 carries a maximum fine of $1,100 (10 penalty units) with no term of imprisonment, and a second or subsequent offence a maximum of $2,200 (20 penalty units). The consequence most people feel is the licence disqualification: a first offence carries an automatic disqualification of six months, which the court can reduce to a minimum of three, with longer periods for repeat offences.

Many first offences are dealt with by penalty notice — a fixed fine and a three-month suspension without a court appearance. But a penalty notice can be court-elected, and sometimes should be, because only a court can deal with the matter without conviction. That is the trade-off worth advice: accepting the notice is easier, but it locks in the disqualification, where electing to court keeps a section 10 outcome on the table.

DUI — the drug-driving charge that needs no test

Road Transport Act 2013 (NSW), s 112: it is an offence to drive while under the influence of alcohol or any other drug.

Driving under the influence (DUI) is a separate and more serious charge, and it needs no roadside drug test at all. Police rely instead on observation — the manner of driving, behaviour, admissions — and it is typically charged where drug effect is alleged but no sample was lawfully obtained within the testing regime. Because it rests on impressions rather than a laboratory result, the evidence is more contestable, but the penalties are markedly higher, sitting at the level of the serious drink driving bands. The mechanics of the alcohol version of this charge are covered on our drink driving page; if you have been charged with DUI rather than a presence offence, the distinction matters and shapes the defence.

First offence — what realistically happens

For a first presence offence, the realistic range runs from a section 10 non-conviction order — no record, no disqualification — through a conviction with a fine and the automatic (or reduced) disqualification. What moves a matter toward the better end is familiar from traffic practice: a clean record, a completed traffic offender intervention program, genuine character references, and the charge tested for procedural soundness before any plea. Courts deal with these matters constantly; what distinguishes outcomes is the quality of what is put before them. Every matter turns on its own facts.

How Lenz Legal approaches drug driving charges

The work starts with the process, not the plea: was the stop and the testing conducted in accordance with the legislation, was the sample handled and analysed properly, and does the certificate of analysis actually establish the offence. Where the charge is made out, the focus shifts to the licence and the record — the program, the references, and a properly argued section 10 application where the facts support one, with the choice between accepting a penalty notice and electing to court made deliberately rather than by default.

If you have returned a positive roadside test or been charged, get advice before your court date — and before explaining anything in a police interview. The detection window is the question people arrive with; the procedure and the licence are the questions that decide the matter.

Drug driving — your questions answered