Drug Driving

This offence is the most serious drug driving offence. The main difference between this offence and the other drug driving offences is the level of impairment. The offence of Driving Under the Influence of a Drug requires a level of actual impairment as the wording above suggests. The level of impairment required is to the extent where you are incapable of having proper control of the motor vehicle.

In assessing your level of impairment, the Police will undertake an impairment test. This does not involve ascertaining the precise level of drug/s in your system but ascertains the physical effects the drugs have had on your ability to properly control a motor vehicle. A Police officer can require you to participate in a drug impairment assessment if they are of the opinion that you are under impaired by a drug other than alcohol. They can form this opinion based on your behaviour or appearance. In order to undertake this impairment test, the Police can require you to accompany them to a Police station or other place where that assessment will be carried out.


Driving While Under the Influence of a Drug
Maximum Fine Maximum Imprisonment Minimum Licence Disqualification
First Offence 25 penalty units 3 months 2 years
Second 120 penalty units 12 months 4 years
Third or subsequent offence 180 penalty units 18 months 4 years

When Can Police Require You To Undergo A Drug Impairment Test?

The Police can require you to undergo an impairment assessment if they form the above opinion and they;

  • Found you driving or in charge of a motor vehicle;
  • Intercepted you at a preliminary breath testing site;
  • Believe on reasonable grounds that you were driving a motor vehicle within the last three hours and it was involved in an accident (if the Police have not been able to establish who was driving a such a motor vehicle, they can also require you to undergo an assessment if you were a passenger in the vehicle);
  • Required you to undergo a preliminary breath test; or
  • Required you to furnish a sample of breath for a breath test.

What Does The Impairment Test Involve?

Currently, there are four components to an impairment test. The test will be video recorded and you will be required to do the following;

  • an interview with the assessing officer in which you are asked questions about your driving, interception by police, illnesses, injuries, medical history, and drug use;
  • undergo an eye examination and eye movement test;
  • walk nine heel-to-toe steps, about face and return; and
  • balance on one leg, then the other.

What Is A “Drug”?

A ‘drug’ can be any drug other than alcohol. The drug does not need to be an illegal drug; it includes prescription and over-the-counter medication.

What Actions Might Constitute Driving While Under The Influence Of Alcohol And Drugs?

“Driving” includes being “in charge” of a motor vehicle. This means that even if you are not actually “driving”, you can still commit the offence if you are “in charge” of the motor vehicle. An example of this could be if you were pulled over on the side of the road with the keys in the ignition, even if the engine is not running.

What The Police Must Prove

To prove this offence, the Police must prove beyond reasonable doubt that;

  • You were driving or in charge of a motor vehicle; and
  • At the time you were driving or in charge of the motor vehicle you were impaired by a drug “…to such an extent as to be incapable of having proper control of the motor vehicle…”.

Posible Defences For Driving While Under The Influence Of Alcohol And Drugs

The defences for this charge are largely technical in nature and relate to the procedure followed by Police when administering the impairment test. For example, if the Police require you to undertake a drug impairment test but they did not have the power to do so under one of the criteria in paragraph 3, then the impairment test cannot be used as evidence in court.

Another defence might be if your apparent impairment was due to a medical condition or a disability and was not due to a drug of any type.

Given the technical nature of this law it is best to seek advice from one of our solicitors to see of there is a defence which might be applicable to your specific circumstances.

Which Court Will Hear Your Matter?

If you are charged with this offence, your matter will be heard in the Magistrates’ Court.


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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