News · Commentary
Drug driving in NSW: the presence offence.
Over four days from 3 to 6 September, NSW Police ran Operation RAID, a statewide road-safety blitz. They carried out 6,420 roadside drug tests, and 774 came back positive. In the same operation they ran more than 162,000 breath tests and found 212 drink driving offences. Read those numbers together and one thing stands out. A driver is far more likely now to be caught for a drug in their system than for alcohol. Most people know the drink driving rules. Far fewer understand the drug driving offence, which works in a very different way.
By Aaron Kernaghan · Published 8 September 2026
This note sets out the law on drug driving in New South Wales: the offence, how it differs from a DUI charge, what the roadside test detects, the penalties, and what to do if you test positive. The Operation RAID figures are the news hook, but the framework below is the standing NSW law.
A word before the law. This is a plain-English account of the legal framework. It is not a comment on any person stopped during that operation, and any person charged with an offence is presumed innocent until a court finds otherwise. The point of this note is that the drug driving offence catches ordinary people who do not think of themselves as impaired, because the law does not ask whether they were.
What is drug driving in NSW?
The main drug driving charge is the presence offence. Section 111 of the Road Transport Act 2013 (NSW) makes it an offence to drive a motor vehicle, or to occupy the driver's seat and try to start it, while a prescribed illicit drug is present in your oral fluid, blood or urine. That is the whole offence. The drug is either there or it is not.
This is a different offence from the one alcohol drivers face. A PCA charge turns on a reading, a number that measures how much alcohol is in your body. The section 111 drug offence has no number. It does not measure a quantity or a level. It asks one question: was a prescribed illicit drug present, yes or no. That design is what trips people up, and it is worth understanding before you get behind the wheel.
What is the difference between drug driving and a DUI?
There are two separate drug driving offences, and they are worlds apart. The presence offence under section 111 needs only proof that a prescribed illicit drug was in your system. Driving under the influence, under section 112, is the older and more serious charge. It needs proof that a drug, any drug, actually affected your ability to drive. A DUI can be made out on evidence of how you were driving, how you looked and spoke, and what police observed, even without a positive test.
The consequences differ too. DUI carries heavier maximum penalties, including a term of imprisonment for a first offence. The presence offence carries no prison term at all. So the first question in any drug driving case is which offence has been charged. A positive roadside test on its own usually leads to a presence charge. A DUI is reserved for cases where there is evidence of actual impairment, such as a crash, erratic driving, or a driver plainly affected at the scene.
Which drugs do roadside tests look for?
The prescribed illicit drugs are THC, the active component of cannabis; methylamphetamine, known as ice or speed; MDMA, known as ecstasy; and cocaine. A roadside mobile drug test takes a sample of oral fluid on a small pad and screens it for these substances. If the first screen is positive, police take a second oral fluid sample, which is sent to a laboratory for a confirmatory analysis. The laboratory result is the evidence used in court.
A positive preliminary test at the roadside also brings an immediate consequence. Police can ban you from driving for 24 hours on the spot, before any charge is laid and before the laboratory result comes back. If the confirmatory test is positive, a court attendance notice or a penalty notice follows. Many other drugs, including some prescription medicines, are not on the prescribed list and will not trigger the presence offence, though a driver affected by any drug can still face a DUI charge.
Do you have to be impaired to be guilty of drug driving?
No. This is the single most misunderstood point. The presence offence is a strict liability offence. The prosecution does not have to show the drug affected your driving, or that you felt any effect, or that you were a danger to anyone. If a prescribed illicit drug is detected while you are driving, the offence is made out.
That is why the offence catches people who are, by any ordinary measure, sober. A person can be well within the law on alcohol, feel completely normal, and still return a positive drug test from use days earlier. The law made a policy choice to draw a bright line: no illicit drug in your system while you drive, full stop. Whether that line is fair is a fair debate, and some argue the presence test punishes people who are not actually affected. But it is the law as it stands, and a court hearing a presence charge is not asked to decide whether you were impaired.
How long does cannabis stay in your system for a roadside test?
Longer than most people expect, and longer than any effect lasts. A roadside oral fluid test can pick up THC for about 12 hours after use, and for heavier or more regular use sometimes for a day or more. The detection window is not a measure of impairment. It only tells you the drug can still be found in your saliva, not that it is still working on your body.
This gap between detection and effect is where the offence bites hardest. Someone who used cannabis on a Friday night can still fail a test on Sunday morning. Because the law asks only whether the drug is present, the safe course is simple. If you have used a prescribed illicit drug, do not drive until it has cleared your system, and understand that clearance can take far longer than feeling normal again.
What is the penalty for drug driving in NSW?
For a first presence offence the maximum fine is 20 penalty units, about $2,200. A conviction also brings an automatic licence disqualification of six months, which a court can reduce to a minimum of three months where there is good reason. A second or later offence carries a maximum fine of 30 penalty units, about $3,300, and a longer disqualification.
Since 2019, police have also been able to deal with a first presence offence by penalty notice. That is an on-the-spot fine of around $600 with a three-month licence suspension, and no court appearance. You can choose to accept the penalty notice, or you can elect to have the matter heard in court. Which path is better depends on your record, your need for a licence, and whether there is a real chance of avoiding a conviction. That is a decision worth taking advice on, because a penalty notice still means a suspension, while a good result in court can mean none.
Does a drug driving charge give you a criminal record?
A conviction for drug driving is recorded and can appear on a criminal history. For many people, that record matters more than the fine, because it can affect work, travel and future dealings. But a conviction is not automatic. A court dealing with the matter can decide not to record one.
The tool is section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It lets a court find the charge proven but dismiss it, or place the person on a conditional release order, without recording a conviction. A non-conviction order also avoids the automatic disqualification, so a first-time driver who needs a licence keeps it. Whether a court will go that way depends on the driver's record, the circumstances, and how the case is presented. It is not a given, and it is the main reason a first drug driving matter is often worth defending or presenting carefully rather than simply paying a fine.
Is prescribed medical cannabis a defence?
No, and this surprises many people. The Road Transport Act does contain a defence for a driver who has a drug present because a doctor prescribed it. But that defence does not extend to THC. So a person using lawfully prescribed medical cannabis that contains THC still commits the presence offence if they drive with THC in their system. Transport for NSW is blunt about it and warns drivers not to drive with THC present, prescribed or not.
There is a narrow defence in genuine cases, for a driver who did not know and had no reasonable grounds to suspect a drug was present, for instance a spiked drink. It is hard to run and turns on the specific facts. Prescribed medical cannabis is not that defence. If you drive on a medical cannabis product that contains THC, you are exposed, whatever the prescription says. Anyone in that position should get advice about the law before, not after, they drive.
What should you do if you test positive or are charged?
Get advice before you decide anything. A drug driving case has more moving parts than people assume. The right questions include whether you have been charged with the presence offence or the more serious DUI, whether the roadside procedure and the laboratory analysis were done correctly, whether a penalty notice or a court hearing is the better path, and whether there is a realistic case for a section 10. Our note on the drug driving offence sets out the framework in more detail.
If police want to question you beyond the testing itself, you are not required to take part in a record of interview, and our note on the police interview and your right to silence explains why an early account given without advice can be hard to unwind. If you have been charged, your court attendance notice will show the court and the first date. Bring it, and any penalty notice, to your lawyer. The choice between paying and defending can turn on facts that are easy to miss without advice.
Frequently asked.
What is drug driving in NSW?
The main drug driving charge in NSW is the presence offence under section 111 of the Road Transport Act 2013 (NSW). It is an offence to drive, or occupy the driver's seat and attempt to start a vehicle, while a prescribed illicit drug is present in your oral fluid, blood or urine. The prosecution does not have to prove your driving was affected. Presence of the drug is enough.
What is the difference between drug driving and a DUI in NSW?
The presence offence under section 111 needs only proof that a prescribed illicit drug was in your system. Driving under the influence under section 112 is different. It needs proof that a drug actually affected your ability to drive. DUI is the more serious charge and carries heavier maximum penalties, including a term of imprisonment. The presence offence does not carry a prison term.
Which drugs do roadside tests look for in NSW?
The prescribed illicit drugs are THC, the active component of cannabis, methylamphetamine (ice or speed), MDMA (ecstasy) and cocaine. A roadside mobile drug test takes a sample of oral fluid and screens for these substances. Alcohol is dealt with separately under the drink driving and PCA provisions.
Do you have to be impaired to be guilty of drug driving in NSW?
No. The section 111 presence offence is a strict liability offence. The prosecution does not have to show the drug affected your driving, or even that you felt any effect. If a prescribed illicit drug is detected in your oral fluid, blood or urine while you are driving, the offence is made out, whether you used the drug that day or, for cannabis, sometimes a day or more earlier.
What is the penalty for drug driving in NSW?
For a first presence offence under section 111 the maximum fine is 20 penalty units, about $2,200, with an automatic licence disqualification of six months that a court can reduce to a minimum of three months. A second or later offence carries a maximum fine of 30 penalty units, about $3,300, and a longer disqualification. Police can also deal with a first offence by penalty notice, an on-the-spot fine of around $600 and a three-month suspension, unless the driver elects to have the matter heard in court.
Does a drug driving charge give you a criminal record?
A conviction for drug driving is recorded and can show on a criminal history. But a court dealing with the matter can choose not to record a conviction, by dismissing the charge or making a conditional release order without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). A non-conviction order also avoids the automatic licence disqualification, which is why it is often the main aim in a first offence.
Is prescribed medical cannabis a defence to drug driving in NSW?
No. The Road Transport Act contains a defence for a driver who has a drug present because it was given to them on the prescription of a doctor, but that defence does not apply to THC. It means a person using lawfully prescribed medical cannabis that contains THC still commits the presence offence if they drive with THC in their system. Transport for NSW warns drivers not to drive with THC present, prescribed or not.
To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.
This article is written by Aaron Kernaghan, criminal defence lawyer at Brady & Associates Lawyers, as at 8 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.
More criminal-law commentary by Aaron Kernaghan.