Updated on: 28.09.26
What to Do If You’re Charged with Drug Driving in NSW
A positive roadside drug test can feel like it came from nowhere, especially if you haven’t used a drug for days. In NSW you can be charged with drug driving even if you drove perfectly and felt completely fine. What you do in the first few days, and above all before you pay a penalty notice, can affect whether you end up with a conviction and how long you’re off the road.
Drug driving in NSW means driving with a prescribed illicit drug in your oral fluid, blood or urine. You don’t have to be impaired to be charged. A positive roadside test can lead to a penalty notice or a court charge, and either can mean a licence suspension or disqualification.
Key Takeaways
- It’s a presence offence. Under section 111 of the Road Transport Act 2013 (NSW), police don’t need to prove you were impaired, only that a prescribed drug was present.
- A positive roadside test means an immediate 24-hour driving ban. The sample then goes to a laboratory, and any penalty notice or charge follows the lab result, often weeks later.
- You may get a penalty notice or a court attendance notice. A penalty notice means a fine and a three-month suspension, with no conviction if you pay. Get advice before you pay.
- In court, the offence is fine-only. The maximum fine is $2,200 for a first offence, and a conviction brings automatic disqualification of six months (reducible to three), unless the court applies Section 10 and records no conviction.
- Medicinal cannabis reforms passed Parliament in September 2026 but aren’t in force yet. Until they commence, a prescription is not a defence to the presence offence.
What Counts as Drug Driving in NSW?
Drug driving is an offence under section 111 of the Road Transport Act 2013 (NSW). It applies if a prescribed illicit drug is present in your oral fluid, blood or urine while you:
- drive a motor vehicle, or
- sit in the driver’s seat and attempt to put the vehicle in motion, or
- (if you hold a full licence) sit next to a learner driver who is driving.
The prescribed illicit drugs are cannabis (THC), methylamphetamine (speed and ice), MDMA (ecstasy) and cocaine. Morphine is dealt with under a separate part of the same section.
The key point is that this is a presence offence. There is no requirement to prove impairment, and no concentration you’re allowed to stay under. That’s why people are charged days after using a drug, when any effect has long worn off. Some drugs stay detectable for far longer than most people expect (see our guide to how long drugs stay in your system and mobile drug testing).
Drug driving versus driving under the influence
Section 112 creates a separate, more serious offence: driving under the influence of alcohol or another drug. That charge is about whether your ability to drive was actually affected, and it carries heavier penalties, including imprisonment. This article covers the presence offence. If you’ve been charged with the more serious offence, read our page on driving under the influence of drugs.
What Happens After a Positive Roadside Test?
The process usually runs like this:
- Roadside oral fluid test. Police ask you to provide a saliva swab.
- Second test. If the first test is positive, you’re taken to a testing van or bus, or to a police station, to give a second sample, which is tested again.
- 24-hour driving ban. If the second test is also positive, you’re banned from driving for 24 hours.
- Laboratory analysis. Your sample is sent to a laboratory. This often takes several weeks.
- Penalty notice or charge. If the lab confirms a prescribed drug, police can either issue a penalty notice or send you a court attendance notice. This is their choice, even for a first offence. If the lab doesn’t confirm the drug, there is nothing to proceed with.
What to do in the first few days
- Comply with the testing directions. Refusing or failing to comply is a separate offence.
- Be careful about what you say. You’re not obliged to explain when or why you used a drug.
- Keep every document. Keep the test paperwork, any notice and the envelope it arrived in (the date it was served can matter).
- Note the due date. A penalty notice has a deadline, so don’t leave it.
- Don’t pay yet. Paying ends your options. Get advice first.
Penalty Notice or Court? How to Decide
For many first-time drivers, this is the most important decision in the whole process.
| Pay the penalty notice | Take it to court | |
|---|---|---|
| Outcome | Fixed fine ($704 at the time of writing) | The court decides: Section 10, a fine, or a conviction |
| Conviction | None if you pay | Possible, but avoidable with a Section 10 or conditional release order |
| Licence | Three-month suspension issued by Transport for NSW | Automatic disqualification if convicted; none if no conviction is recorded |
| Can you challenge the case? | No. Paying finalises it | Yes |
| Worth considering if | You can manage three months without a licence and want it finished | Your licence is essential for work, you have prior traffic offences, or you think the test or evidence may be flawed |
Paying does not avoid the suspension. It also means you can’t raise any problems with the evidence. Going to court carries risk too: if the court records a conviction, disqualification follows. That’s why the decision should be made with advice, not by default.
What Are the Penalties in Court?
Drug driving is a fine-only offence. There is no jail sentence for the presence offence itself.
| First offence | Second or subsequent offence | |
|---|---|---|
| Maximum fine | 20 penalty units ($2,200) | 30 penalty units ($3,300) |
| Imprisonment | None | None |
| Automatic disqualification (if convicted) | 6 months. The court can reduce it, but not below 3 months | 12 months. The court can reduce it, but not below 6 months (applies if you’ve had a major traffic offence in the last 5 years) |
| Driving under the influence of a drug (s112) | Higher penalties, including imprisonment | Higher again |
If the court records a conviction, it must make a disqualification order. That is what makes the outcome so important for anyone who needs to drive for work.
Can You Avoid a Conviction and Disqualification?
Often, yes, but not automatically. Under Section 10 of the Crimes (Sentencing Procedure) Act 1999, a court can find the offence proved without recording a conviction, either by dismissing the charge or by making a conditional release order. If no conviction is recorded, no disqualification follows.
Courts generally look at things such as:
- whether it’s your first offence and your traffic record generally
- how important your licence is to your work and family
- your attitude to the offence and whether you understand the risk
- character references from employers, colleagues or family
- steps you’ve taken since, such as completing a driver education course. Read more in our guide to the Traffic Offenders Program
No lawyer can promise a particular result, and Section 10 is a discretion, not a right. But it’s the main reason the court option is worth serious thought for a first-time driver whose licence matters.
Possible Defences and Challenges
Whether any of these apply depends on the evidence in your case, which a lawyer will review once the police brief is served:
- Testing procedure. The Act sets rules about how and when samples must be taken, including time limits and where police can require a test. If the rules weren’t followed, the evidence may be challenged.
- Laboratory analysis and continuity of the sample. The prosecution must prove a prescribed drug was present, so the reliability and handling of the sample matter.
- Whether you were driving. The offence requires you to have driven, or to have sat in the driver’s seat and attempted to put the vehicle in motion.
- Morphine. Special rules, including a statutory defence in some circumstances, apply where the substance detected is morphine.
Prescribed Medicinal Cannabis: Where the Law Stands
Under the law as it currently applies, a prescription is not a defence. If THC is present in your system, including from a lawfully prescribed cannabis medicine, you can still be charged with the presence offence. Transport for NSW’s advice is that if you may have any THC in your system, the safest decision is not to drive.
That’s changing. In September 2026 the NSW Parliament passed reforms for medicinal cannabis patients. Under the new scheme, drivers with an unrestricted licence will be able to register with Transport for NSW, provide evidence of a prescription and complete an education program. If a registered patient’s laboratory result shows THC below a set threshold (50 ng/mL, according to the NSW Government), no further action will be taken. Roadside testing and the 24-hour ban will continue, and impaired drivers can still be charged with driving under the influence.
The reforms don’t take effect until they’re proclaimed. At the time of writing (28 September 2026), the current presence offence still applies. If you’ve been charged after taking prescribed medicinal cannabis, get advice promptly, because the timing of your offence and the commencement date may matter.
Do You Need a Traffic Lawyer in Sydney for a Drug Driving Charge?
You’re not required to have one, but for a drug driving charge it’s usually worth it. The decisions that matter most (pay or go to court, how to present your case for a Section 10, whether the testing process can be challenged) are made early and are hard to undo.
A traffic lawyer can:
- explain your options for a penalty notice or a court attendance notice before your deadline
- review the police brief, including how you were tested and how the sample was handled
- prepare references and material to support a Section 10 or a reduced disqualification
- appear for you in court, so you don’t have to face it alone
Our traffic lawyers in Sydney act for drivers across NSW, with offices in Sydney, Parramatta, Liverpool, Wollongong, Newcastle and Gosford. For more on how we approach these matters, see our page on drug driving charges.
Two Illustrative Examples
These are illustrative examples, not real clients. Outcomes depend on individual circumstances and are never guaranteed.
A carpenter, first offence. Daniel is 29 and drives between building sites. He used cannabis on a Saturday night and tested positive at a roadside test on Tuesday morning. He wasn’t impaired, and has no prior record. Weeks later, a penalty notice arrives. Paying it would mean three months without a licence and no way to get to work, so he seeks advice, elects to go to court and provides references from his employer and evidence of how much he relies on his licence. In cases like this, a court may deal with the matter under Section 10 (no conviction, no disqualification), or convict and reduce the disqualification toward the minimum. Which happens depends on the evidence and the magistrate.
A rideshare driver with a prior. Priya is 41 and her income depends on her licence. She receives a court attendance notice after a positive test for cocaine, days after a night out. She was convicted of a mid-range drink driving offence three years ago, so a second major traffic offence within five years means the automatic disqualification is 12 months (reducible to six). Her lawyer checks the testing and laboratory process, then prepares sentencing material aimed at the shortest disqualification possible. Section 10 is much harder with a recent prior, so the focus is on limiting the disqualification period rather than avoiding it.
Frequently Asked Questions
Can I be charged with drug driving if I wasn’t impaired?
Yes. Drug driving under section 111 of the Road Transport Act 2013 (NSW) is a presence offence. Police only need to show that a prescribed illicit drug (THC, methylamphetamine, MDMA or cocaine) was present in your oral fluid, blood or urine while you were driving. They don’t need to prove that your driving or ability was affected.
How long will my licence be suspended or disqualified?
If you pay a penalty notice, Transport for NSW suspends your licence for three months. If the matter goes to court and a conviction is recorded, the court must disqualify you: the automatic period is six months for a first offence (reducible to a minimum of three months), or 12 months (reducible to six) if you’ve had a major traffic offence in the last five years. If the court deals with the matter under Section 10 without recording a conviction, no disqualification applies.
Should I pay the penalty notice or go to court?
It depends on your circumstances. Paying finalises the matter without a conviction, but the three-month suspension still applies and you can’t argue the case. Going to court lets you challenge the evidence and ask for a Section 10 outcome, but a conviction and disqualification are possible if that fails. Get advice before the notice’s due date.
Will drug driving go on my criminal record?
If a court convicts you, the conviction is recorded. If you pay a penalty notice, no conviction is recorded, although the offence appears on your driving record. If the court finds the offence proved but applies Section 10, no conviction is recorded.
Can I drive while I wait for the lab result?
The 24-hour driving ban applies immediately after a positive roadside test. After it ends, your licence isn’t suspended until a notice issues, but driving with a prescribed drug still present is a fresh offence, and some drugs, particularly cannabis, can remain detectable for days. Don’t assume you’re clear. Get advice before you drive.
What’s the difference between drug driving and driving under the influence of drugs?
Drug driving (section 111) is about presence: no impairment needs to be shown. Driving under the influence of a drug (section 112) is a separate and more serious offence that is about whether your ability to drive was affected. It carries heavier penalties, including imprisonment.
Talk to Us About Your Drug Driving Charge
If you’ve failed a roadside drug test, received a penalty notice or been served with a court attendance notice, get advice before you pay or plead. Call LY Lawyers on 1300 595 299 for a free consultation, available 24/7, or contact us online.
This article is general information only and is not legal advice. The law changes, and this article is current as at 28 September 2026.
