Drive With illicit Drug Present in Blood - Charges, Penalties and Sentencing

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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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.

Police can issue either:

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

If you receive an infringement notice, you will also receive a notice of suspension from Transport for NSW that suspends 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 but cannot reduce it below the minimum disqualification period of 3 months.

The Offence of Drive 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:

“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?

The Act list the prescribed illicit drugs of:

  • 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?

A motor vehicle is defined in the Act as a vehicle that meets:

  • any description of a vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or
  • any description of a tracked vehicle (such as a bulldozer), or any description of a 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.

Procedure and Penalties for Infringement Notices

An infringement notice can be issued by police which involves a fine of $572 for an offence of driving with illicit drug present in the blood. The driver will then be sent a letter from Transport for NSW advising them that their licence will be suspended for a period of three months.

Notice of Suspensions

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

An appeal is possible but 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 three main factors:

  • the circumstances of the offence;
  • your traffic record/character;
  • your need for a licence.

An appeal is filed at a Local Court Registry accompanied by a filing fee.

Procedure and Penalties for Court Attendance Notices

A court attendance notice can still be issued by police. If the police issue a court attendance notice the person will need to appear before the Local 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 sentencing 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.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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