Charged with drug driving in NSW.

The legislative source.

This is a presence offence. Unlike driving under the influence (s 112), the prosecution does not have to prove that you were impaired or that the drug affected your driving. The presence of the drug in your oral fluid, blood or urine is enough.

The testing pathway: a roadside Mobile Drug Test (MDT) saliva swab; if positive, a secondary saliva test at the roadside; if positive, the driver is taken to a police station or testing facility for a confirmatory laboratory test on a different sample. The matter is charged when the confirmatory test returns positive. A separate offence at s 111(3) deals with the presence of morphine or cocaine detected in blood or urine in defined circumstances.

Penalties and likely outcomes.

First offence.

Maximum penalty 20 penalty units ($2,200). Automatic disqualification 6 months, minimum 3 months. Imprisonment is not available for a first offence.

What the magistrates actually impose.

A first drug driving offence, on a plea, commonly attracts a CRO with conviction and the reduced disqualification, or a section 10(1)(b) CRO without conviction where the subjective case is strong. Section 10 outcomes are more readily available than in PCA matters because the offence does not involve a quantifiable level of impairment.

Second offence.

Maximum penalty 30 penalty units ($3,300). Automatic disqualification 12 months, minimum 6 months. Section 10 is rarely available on a second offence.

Defences and arguments worth running.

The roadside test is not the evidence.

The prosecution must prove the presence of the drug at the time of driving. The roadside MDT is a screening device. The evidence is the confirmatory laboratory test on a different sample. Where the chain of custody between the roadside test and the laboratory is defective, exclusion of the evidence can be argued.

Passive consumption.

Where the driver was exposed to cannabis through second-hand smoke (a confined space, a vehicle with smokers) and did not consume cannabis themselves, an honest and reasonable mistake of fact argument can be available. The defence is fact-specific and turns on the level of exposure and the timing.

Time since use.

THC is detectable in oral fluid for a longer period than the impairing effect of cannabis. A driver who consumed cannabis several days before driving may return a positive roadside swab without being affected at the time of driving. This does not provide a defence to the presence offence, but is relevant to the strength of a section 10 application.

What we do for clients facing this charge.

The strategy in a drug driving matter is usually to plead and run the strongest section 10 application available on the facts. The subjective case is built on the same materials as the PCA matters: character references, a contrition statement, completion of a recognised intervention program, and evidence of remediation.

Where there is a viable challenge to the confirmatory test or to chain of custody, the defended hearing is run. We subpoena the laboratory's quality-assurance records, the calibration data, and the procedural records of the test.

What we tell clients on the first call.

The practical detail below is not legal advice for your matter. It is the version of the conversation the firm typically has with a client charged with drug driving in the first hour.

What evidence police usually rely on.

An MDT or DBT result, the laboratory certificate of analysis confirming the substance, and the officer's witness statement. Continuity of the sample and the chain of custody are sometimes argued.

What to bring to the first consultation.

• The Court Attendance Notice (or charge sheet) and any bail papers.
• Anything police gave you in writing — fact sheet, certificate of analysis, search warrant copy, property seizure record.
• A short written timeline of the day, in your own words.
• Your driver licence; the time of the test, what you had taken, and when.

Common mistakes in the first twenty-four hours.

• Talking to anyone other than your lawyer about the matter. Friends, family, co-accused and social media are not privileged.
• Deleting messages, photographs, posts or browser history. The trail left by deletion is often more damaging than what was there.
• Contacting the complainant or any prosecution witness, even through a third party.
• Posting on social media about the test, the substance, or the road stop.

What not to say to police without advice.

You must give your name and address. You do not have to answer anything else, and in most cases you should not. The standard answer is: “I do not wish to answer questions. I want to speak to my lawyer.” Section 89 of the Evidence Act 1995 (NSW) protects silence; the narrow section 89A exception applies only on indictable matters and only where a special caution has been given in the presence of an Australian lawyer.

The timeline you can expect.

From charge to first court appearance is typically two to six weeks in the Local Court and longer where the matter is indictable. The brief of evidence is served by the prosecutor on a date set at the first mention. From service of the brief to first reply is typically twenty-eight days. Defended hearings and committals are then listed weeks or months out depending on the court list.

When an early plea may or may not be appropriate.

An early plea attracts a sentencing discount of up to twenty-five per cent if entered at the first available opportunity, but it locks in a conviction. The firm does not advise an early plea before the brief is served and read. On a first offence with a low reading, a section 10 is on the realistic range. On a higher or repeat reading, the case for testing the laboratory certificate or the procedural defences is stronger.

Court-specific notes.

If the matter is listed at the Downing Centre, Parramatta, Penrith, Burwood, Manly, Newtown, Waverley, Hornsby or Sutherland Local Court, the firm appears in person. Wollongong Local Court matters are run from the firm's Wollongong office. ACT Magistrates Court and ACT Supreme Court matters are run from chambers; the firm appears in person at all ACT mentions.

Recent outcomes · drug driving matters.

Anonymised outcomes from the firm's matter set. Names, dates beyond the year, and identifying details have been altered or omitted to preserve client confidentiality. Each result was determined on the particular facts and is not a guarantee of any future outcome.

Frequently asked.