Drive With Illicit Drug Present In System

In New South Wales, it is an offence to drive a motor vehicle with an illicit drug present in blood, oral fluid or urine. The maximum penalty for a first offence is a fine of $2,200 or a fine of $3,300 in the case of a second or subsequent offence.

The Police can either issue an Infringement Notice or a Court Attendance Notice. If you receive an Infringement Notice (a fine of $572), you will subsequently receive a Notice of Suspension from Transport for NSW that automatically suspends your licence for a period of 3 months.

If you receive a Court Attendance Notice or you elect to have your matter heard in Court, you will be subjected to the above financial penalties and the following possible disqualification periods:

Disqualification Periods for First Offence in Court

Minimum Licence Disqualification Period: 3 months.

Automatic Licence Disqualification Period: 6 months.

Disqualification Periods for a Second or Subsequent Offence in Court

Minimum Licence Disqualification Period: 6 months.

Automatic Licence Disqualification Period: 12 months.

What is Drive with Illicit Drug Present in System?

The offence of Drive with Illicit Drug Present in System is set out in Section 111 of the Road Transport Act 2013 (NSW) which states:

1. A person must not, while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug –
   1. Drive a motor vehicle, or
   2. Occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
   3. If the person is the holder of an applicable driver licence (other than an applicable provision 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?

Pursuant to the Road Transport Act 2013 (NSW), the list of prescribed illicit drugs are:

• 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 Road Transport Act 2013 (NSW) 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.

Depending on the circumstances, there is a risk that riding an E-Bike or an Electric Scooter might meet the definition of a Motor Vehicle. 

The following acts might constitute a Drive with Illicit Drug Present in System:

• Being caught driving a motorbike with cocaine in your system.
• Being caught driving a car with MDMA in your system.

What must be proven?

For a person to be found guilty of Drive with Illicit Drug Present in System, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you were driving a vehicle; and
• That you returned a positive reading to driving with an illicit substance present in your system.

If the Prosecution do not prove every single one of the above elements, you will be found not guilty.

Which Court Will Hear the Matter?

This offence is a summary offence and will be finalised in the Local Court.

Possible Defences for Drive with Illicit Drug Present in System

The following defences may be available for Drive with Illicit Drug Present in System charge:

• Procedural Irregularities (e.g. the Police failed to follow legal procedures such as not conducting the relevant tests within the required timeframe).
• Duress 

Common Questions about Drive with Illicit Drug Present in System

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely. 

A Court can impose any of the following penalties for a Drive with Illicit Drug Present in System in NSW charge:

• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for this offence might jeopardise your job and personal relationships. Moreover, a conviction for an offence of this nature can completely rule out certain career paths such as teaching, driving jobs and a range of government employment options. 

Will I go to Gaol for a Drive with Illicit Drug Present in System charge?

This offence does not carry Gaol as a possible penalty. 

Is it Possible to Avoid a Criminal Conviction for a Drive with Illicit Drug Present in System charge?

It is a possibility that you may avoid a criminal conviction for this offence, however, the circumstances of that happening are limited. If the Court is convinced that it is appropriate to deal with your matter by way of a Non-Conviction, you will receive a Section 10(1)(a) or with a Conditional Release Order without conviction under Section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

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