Drive with illicit Drug Present in Blood


The offence of driving with the presence of certain drugs (other than alcohol) in oral fluid, blood or urine is committed by a person who drives a motor vehicle on a public road while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug.

The maximum penalty for this charge depends on whether a person is a first offender or a repeat offender. In either case, the starting point in sentencing would be for a criminal conviction to be recorded, a fine to be imposed and the offender’s licence disqualified for six months.

As of 20 May 2019, NSW Police Officers will be able to issue either:

  • an infringement notice; or
  • court attendance notice for the offence.

If you receive an infringement notice, you will also receive a notice of suspension from the RMS suspending your licence for a period of three months.

If you receive a court attendance notice, or elect to take the matter to court, the maximum penalty for this charge depends on whether a person is a first offender (20 penalty units) or second and subsequent offender (30 penalty units). If a court sentencing a person records a conviction, it must make a disqualification order. The automatic period of disqualification for a first-time offender is 6 months. The court can reduce this period; however, they cannot reduce it below the minimum disqualification period of 3 months.

<pLoss of licence for any period, whether it be days, weeks, or months, can have a crippling effect on a person and their entire family. There are options available to offenders to have the matter determined by a court and seek to avoid a conviction and loss of licence, or to appeal licence suspension.

Infringement Notices vs Court Attendance Notices

Police officers can now issue either a court attendance notice or an infringement notice for an offence of driving with illicit drug present in blood.

Prior to 20 May 2019, a court attendance notice was always issued to a person charged with this offence. A court attendance notice is effectively what its name implies – a notice requiring a person to attend court in relation to the matter they have been charged with.

From 20 May 2019 onwards, NSW police officers will have a choice whether to issue and infringement notice or a court attendance notice. It is understood that most will issue an infringement notice. An infringement notice, while new to driving with illicit drug present in blood offences, is not a new concept. Infringement notices are issued daily by police for offences ranging from speeding, using a mobile phone and proceeding through a red light.

The Offence of Drive Vehicle with Illicit Drug Present in Blood:

The offence of Presence of certain drugs (other than alcohol) in oral fluid, blood or urine is set out in section 111 of the Road Transport Act 2013 which states:

Presence of prescribed illicit drug in person’s oral fluid, blood or urine. A person must not, while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug:

  • drive a motor vehicle, or
  • occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
  • if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

What Is a “Prescribed Illicit Drug”?

Section 4 of the Road Transport Act 2013 defines prescribed illicit drug:

  • Marijuana (also known as delta-9-tetrahydrocannabinol);
  • Speed (also known as methylamphetamine);
  • Ecstasy (also known as 3,4-methylenedioxymethylamphetamine);
  • Cocaine.

What is a “Motor Vehicle” Described as?

A motor vehicle is defined in section 4 of the Road Transport Act 2013 under vehicle:

  • Any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or
  • Any description of tracked vehicle (such as a bulldozer), or any description of vehicle that moves on revolving runners inside endless tracks, that is not used exclusively on a railway or tramway, or
  • Any other description of vehicle prescribed by the statutory rules.

If you receive an infringement notice:

Procedure and Penalties for Infringement Notices

An infringement notice can be issued by police which involves a fine of $561 for an offence of driving with illicit drug present in blood. The driver will later then be sent a letter from the RMS advising them that their licence will be suspended for a period of three months.

For advice on an infringement notice, notice of suspension, or appeal rights, please feel free to contact our criminal and traffic law solicitors by calling 1300 146 568.

Notice of Suspensions

Following payment of the infringement notice or the due date for payment passing, the RMS will issue a notice of suspension for 3 months for the offence.

For many offenders, a driver licence is essential. Armstrong Legal can provide you with advice about running an appeal against the suspension.

There is no real test that the court applies when deciding the appeal. However, the court does not permit a review of your guilt or innocence of the offence or the imposition of the fine. Generally the court will make a decision based on 3 main areas:

  • The circumstances of the offence
  • Your traffic record/character
  • Your need for a licence

More information about licence suspension appeals can be found here.

Do I need to attend court if I receive an Infringement Notice?

The person will not be required to attend court, unless they make a court election or wish to appeal the notice of suspension or the RMS notice of suspension. Such appeals are to be filed at a Local Court Registry accompanied by a filing fee, relevant legal forms and associated paperwork.

If you receive a Court Attendance Notice:

Procedure and Penalties for Court Attendance Notices

A court attendance notice can still be issued by police. If police issue a court attendance notice the person will need to appear before the court on the date specified on the notice. The person can plead guilty or not guilty to the offence. If the person pleads guilty, a sentence hearing will be conducted, and they will be sentenced by a magistrate. For a first offence a maximum penalty of 20 penalty units can be imposed. If a conviction is recorded the court must impose a period of disqualification. As outlined above, the automatic disqualification period is 6 months and the minimum disqualification period is 3 months. Armstrong Legal’s solicitors can assist you in obtaining the best possible outcome in your circumstances. This may involve a section 10 dismissal or a conditional release order without conviction (formerly a section 10 non-conviction bond)

For advice on attending court, seeking representation and/or attempting to avoid a conviction please feel free to contact our criminal and traffic law solicitors by calling 1300 146 568.

Is it Possible to Avoid a Criminal Record for a Presence of Prescribed Illicit Drug in Person’s Oral Fluid, Blood or Urine Charge?

It may be possible to avoid a criminal record if you are afforded the leniency of a section 10 non conviction order.

Which Court Will Hear Your Matter?

This charge will be heard in the Local Court.

Do I Need a Lawyer to Represent Me?

It is your choice whether to represent yourself or whether to have a solicitor represent you in Court. If you are worried about a criminal conviction or loss of licence, we would advise having a solicitor represent you. For someone who is unfamiliar with the Court system, having to navigate a drug driving charge can be daunting. Our solicitors specialise in these matters and will use their experience and expertise to lead you through the process to the best possible outcome.

WHERE TO NEXT?

In NSW, traffic offences are treated seriously. Therefore, it is important to get competent legal advice as early as possible, whether you have received a penalty notice, had your licence suspended or been charged with a serious offence. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.

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