Traffic offences in NSW
Driving with an illicit substance present
This is the offence people are most often shocked by, because it does not ask whether you were affected. It asks only whether a drug was in your saliva. You can be convicted having driven perfectly, days after the last time you used anything, and the law does not care that you did not know it was still there.
Do not pay the fine before you have taken advice
Paying is what triggers the three month suspension, and once it is paid the offence sits on your record. There is a window between the notice arriving and the due date on the reminder, and it is the only room you have. Call 0407 171 626 (Alicia) or 0407 534 594 (Michelle).
Catron Simmons Lawyers are traffic lawyers acting for drivers charged with drug driving offences in Local Courts across New South Wales, from Sydney and the Hills District to the regions.
The offence is against section 111 of the Road Transport Act 2013. It covers driving, occupying the driver’s seat and attempting to put a vehicle in motion, and supervising a learner, while a prescribed illicit drug is present in your oral fluid, blood or urine.
Presence is the whole offence. The prosecution does not have to prove that your driving was affected, and it does not have to prove that you knew the drug was in your system. That is what separates it from driving under the influence, where impairment must actually be established.
Where alcohol and a prescribed illicit drug are both involved, a separate and more serious combined offence applies. See combined drink and drug driving offences.
On this page
Section 111
What the offence actually is
The drugs police test for
Mobile drug testing at the roadside detects four substances in oral fluid:
- delta-9-tetrahydrocannabinol, THC, the active component of cannabis
- methylamphetamine, also called speed or ice
- MDMA, ecstasy
- cocaine
Morphine is also a prescribed illicit drug, but it is detected only in blood or urine and not by the roadside oral fluid test. It is the one substance carrying its own statutory defence, dealt with below.
No impairment, no knowledge, no threshold
The three things drivers assume must matter, and none of them do.
- Impairment is irrelevant. Driving faultlessly is not an answer. The offence is complete on presence.
- Knowledge is irrelevant. The prosecution does not have to prove you knew the drug was in your system, and believing honestly that it had cleared is not a defence.
- There is no threshold. Any detectable quantity will do. THC in particular can be detected long after the effect has worn off, and the detection window varies enormously between people.
Being charged does not mean being convicted
The offence is difficult to defend on the facts, and that is exactly why the work moves to the other end. A first offender with a good record who takes the matter to court properly prepared can be dealt with without conviction, which means no disqualification at all. That outcome is available and it is not automatic, and it depends almost entirely on what is put before the magistrate.
The process
Roadside testing and what follows
The screening test
A saliva swab at a random drug testing operation or after being pulled over. It takes a few minutes and it is only a screen.
The second test
A positive screen means a second oral fluid test in the testing vehicle or at a station. Police can direct you to remain at or near the place of testing while it is completed.
The 24 hour prohibition
If the second test is positive you are given a notice prohibiting you from driving for 24 hours. That is not a suspension and it is not a penalty. It is immediate, and driving in breach of it is an offence in itself.
Laboratory analysis
The sample goes to a laboratory. This is the analysis the charge rests on, and it can take weeks. Nothing happens until it comes back, and you may hear nothing for some time.
Then a penalty notice or a court attendance notice
If the laboratory confirms the presence of a prescribed illicit drug, you will receive either a penalty notice in the post or a court attendance notice. Which one you get depends largely on whether this is your first alcohol or drug related driving offence in five years.
Where police suspect impairment rather than mere presence, they can require a sobriety assessment and arrange a blood or urine sample, and the charge may be driving under the influence instead of, or as well as, a presence charge.
The numbers
Penalty notice or court
The penalty notice route
Since 2019 police have been able to deal with a first presence offence by penalty notice instead of sending you to court. You receive a fixed fine, currently around $700 and indexed most years, and Transport for NSW suspends your licence for three months. Check the amount on your notice against the Transport for NSW offence search.
The attraction is obvious: no court, no conviction, and the offence sits on your traffic record rather than a criminal one. The catch is the suspension, which is not optional and follows automatically. Note also that the suspension is triggered by paying any part of the fine, or by letting the time to elect a court hearing lapse. People frequently pay a first instalment to stop the fine escalating and are then surprised by the suspension notice.
| First offence | Second or subsequent | |
|---|---|---|
| Penalty notice fine | Around $700 | Not available |
| Suspension if dealt with by penalty notice | 3 months | Not applicable |
| Maximum court imposed fine | $2,200 | $3,300 |
| Maximum prison term | None | None |
| Automatic disqualification | 6 months | 12 months |
| Minimum disqualification | 3 months | 6 months |
| Maximum disqualification | 6 months | Unlimited |
Two points worth drawing out of that table. There is no term of imprisonment for the presence offence, first or subsequent, which sets it apart from most of the alcohol offences. And on a first offence the court has no power to disqualify you for longer than six months, whereas on a second offence there is no ceiling at all.
What makes it a second offence
Any alcohol or drug related driving offence in the previous five years, not just another drug presence charge. It includes offences dealt with by penalty notice, so a low range drink driving ticket you paid three years ago and never went to court over is enough to put you in the second column.
Electing to go to court
You can take a penalty notice and the resulting suspension to court. It is the only route to no disqualification at all, and it is genuinely available on a first offence with a clean record. It is also a real risk: the court can impose a larger fine than the notice, record a conviction, and disqualify you for up to six months rather than three. That is a decision to make on advice, not on optimism.
Where the court deals with the matter by way of a section 10 dismissal or a conditional release order without conviction, there is no conviction and therefore no disqualification. What earns that is a clean or near clean record, a genuine explanation, evidence of what the licence is used for, and demonstrated insight rather than asserted insight. A completed Traffic Offender Intervention Program and honest engagement with a drug and alcohol counsellor both carry real weight here.
You only get one section 10 in five years
The court has no power to make a section 10 order for a major traffic offence if section 10 has already been applied to you for another major offence in the five years before it determines this one. It is not discretionary and mitigation does not cure it. If you used a section 10 on something else two years ago, it is gone.
A separate and more serious charge
Refusing a sample
If police lawfully require you to provide oral fluid, blood or urine, you must provide it. Refusing or failing to do so is charged separately and is treated far more seriously than the presence offence itself, on the footing that it defeats the testing regime altogether.
| First offence | Second or subsequent | |
|---|---|---|
| Maximum court imposed fine | $3,300 | $5,500 |
| Maximum prison term | None | 18 months |
| Automatic disqualification | 3 years | 5 years |
| Minimum disqualification | 6 months | 12 months |
| Maximum disqualification | Unlimited | Unlimited |
Compare that with the first table. A first refusal carries an automatic three year disqualification where the presence offence carries six months. Refusing because you assume the result will be worse is almost always the worse decision.
The consequences can be different again where the refusal follows a fatal or serious injury collision, and a genuine physical or medical inability to provide a sample is a different thing from a refusal. Both are worth advice rather than assumption.
The unfair part
Medicinal cannabis and prescribed medication
A cannabis prescription is not currently a defence
This is the hardest conversation we have on these matters. A driver with a lawful medicinal cannabis prescription, taking it exactly as directed, who tests positive for THC, commits the same offence as someone who smoked a joint in a car park. There is no medical exception for THC in the Act as it stands, and the fact that the prescription is valid does not answer the charge.
What it does do is matter a great deal on sentence. Lawful prescribed use, taken as directed, with no impairment and a clean record, is about as strong a case for a non conviction order as this offence produces. Bring the prescription, the prescriber’s letter and the dispensing records.
Reform is before Parliament, and it is not law yet
The New South Wales Government introduced the Road Transport Amendment (Medical Cannabis and Driving Offences) Bill 2026 in June 2026. If passed in its introduced form, eligible patients who register with Transport for NSW, provide evidence of a valid prescription and complete an online education program would no longer be automatically penalised solely because THC is detected, provided they are not impaired. Roadside testing would continue unchanged. Separate private members’ bills proposing a broader defence have also been introduced.
None of that is in force. Until it is, the law is as set out above, and a driver charged today is charged under the current provisions. If you have been charged and are a prescribed patient, tell us at the first conversation, because the timing of your matter against the progress of the legislation is worth thinking about.
The morphine defence
Morphine is the exception written into the Act. Where morphine is present in your blood or urine, it is a defence if you prove that its presence was caused by consumption for medicinal purposes, meaning a drug prescribed by a medical practitioner and taken in accordance with the prescription, or a codeine based medicine bought from a pharmacy and taken in accordance with the manufacturer’s instructions. The onus is on you, and it requires evidence rather than an assertion from the bar table.
Contesting it
Defences
There is no defence of honest and reasonable mistake
Say it plainly, because clients arrive believing the opposite and a good deal of material online still suggests it. The higher courts have determined that honest and reasonable mistake is not available on this offence, which is one of absolute liability. It does not matter that you honestly and reasonably believed the drug had left your system, that you had waited days, or that you were told it would be clear. The prosecution proves presence and that is the end of the element.
What that belief does do is go to sentence, where it can matter a great deal. It is an argument for a non conviction order, not an acquittal, and it is important not to confuse the two before you enter a plea.
What is actually available
- The test or the stop was unlawful. Mobile drug testing is governed by prescribed requirements about who may require a test, in what circumstances and how. Where those were not met, the evidence may not be admissible.
- The analysis is wrong. Chain of custody, sample handling, laboratory procedure and the certificate itself. This is expert territory and it is not embarked on lightly, but it is real.
- You were not the driver. The prosecution must prove that you drove, occupied the driver’s seat and attempted to start the vehicle, or supervised a learner.
- The morphine defence, where morphine in blood or urine came from a prescribed or pharmacy medicine taken as directed.
- Necessity or duress. Rare and closely scrutinised, but a genuine emergency has succeeded.
Even where the offence cannot be contested, read the police fact sheet closely before it is tendered. The manner of driving, whether there was any suggestion of impairment, the reason for the stop and the time since consumption all bear on sentence, and a fact sheet that overstates any of them should be corrected before the magistrate reads it.
Getting back on the road
Your licence, and appealing the suspension
The three month suspension
Where the matter is dealt with by penalty notice, Transport for NSW suspends you for three months once the fine is paid or the time to elect a court hearing lapses. The notice arrives in the post and tells you when the suspension starts. That start date, not the 28 days, is your working deadline.
The appeal
You can appeal that suspension to the Local Court within 28 days. Filing the appeal stays the decision, so the suspension does not begin and you keep driving until the court decides, which is why the appeal has to be lodged before the start date on the notice. The question for the court is whether you are a fit and proper person to hold a driver licence. See licence suspension appeals for how it works and what has to be filed.
Bear in mind that appealing the suspension and electing to take the offence to court are different applications with different consequences, and it is worth being clear which one you want before either is lodged.
There is no work licence in NSW
New South Wales has no work licence, restricted licence or hardship licence. If you are suspended or disqualified you cannot drive at all, for any purpose. That is why what happens in the first fortnight after the notice arrives matters more than anything you can do afterwards.
Why Catron Simmons
Why drivers choose us
We are straight about the odds
This offence is hard to defend and easy to mitigate. We will tell you which of those your matter is at the first conversation, rather than taking a hopeless defended hearing and billing you for it.
We know the testing regime
With a background in prosecution and in highway patrol, we know how mobile drug testing is conducted, what the brief should contain and where the requirements are actually met on paper rather than in practice.
Wherever your matter is listed
These charges are heard where the driving happened, often a long way from home. We appear in Local Courts across New South Wales, so you are not left finding a second lawyer in another town.
You deal with a principal
We are a boutique firm. You talk to the solicitor who will appear for you, not a call centre, and we are contactable outside business hours.
Common questions
Drug driving charges: your questions answered
How long do drugs stay detectable in saliva?
There is no reliable answer, and that is the point of the offence. Detection depends on the substance, the amount, how often you use it, and your own physiology. THC in particular has been detected well beyond the period in which anyone would say it was having an effect. Do not plan around a number you read somewhere, because the law asks only whether it was there.
Does it matter that I was not affected?
Not to the charge. The offence is proved by presence alone and impairment is not an element. It matters on sentence, where a magistrate deciding whether to record a conviction will take account of the fact that there was no suggestion of affected driving.
I have a medicinal cannabis prescription. Am I protected?
Not under the law as it currently stands. A valid prescription taken exactly as directed does not answer the charge, because the offence is presence based and there is no medical exception for THC. Reform is before Parliament but is not in force. A prescription is powerful mitigation and is often the basis for a non conviction order, so bring the prescription and the prescriber’s material.
Will I lose my licence for a first offence?
Yes if the matter is dealt with by penalty notice, because the three month suspension follows automatically once the fine is paid or the election period lapses. If you take it to court and are convicted, the automatic disqualification is six months and the shortest the court can order is three. If the court deals with you by way of section 10, there is no disqualification at all.
Can I be charged with drug driving and DUI for the same driving?
They are separate offences and are proved differently, one by presence and one by impairment. Where both alcohol and a prescribed illicit drug are involved there is a specific combined offence, and a person cannot be convicted of that combined offence and of the presence or influence offences for the same conduct.
What is the 24 hour notice police gave me?
A prohibition on driving for 24 hours following a positive second oral fluid test. It is not a suspension, not a penalty and not the end of the matter. Driving in breach of it is a separate offence. The actual consequences follow the laboratory result, which can take weeks.
Should I just pay the fine?
Sometimes, and it should be a decision rather than a reflex. Paying avoids court and avoids a conviction, but it locks in the three month suspension and puts the offence on your record where it will count as a first offence if there is ever a second. If the suspension would cost you your job, or if the circumstances are genuinely sympathetic, court may be the better option. Take advice before you pay any part of it.
What happens if I refuse the roadside test?
Refusing or failing to provide a sample when lawfully required is charged separately and is treated much more seriously. A first refusal carries an automatic three year disqualification, against six months for the presence offence itself, and a second carries up to 18 months imprisonment. It is almost never the better course.
Get started
Tested positive? Talk to us before you pay.
Send us the penalty notice or court attendance notice and tell us what your traffic record looks like. We will tell you whether paying or going to court is the better move, what a non conviction order would realistically take, and what it would cost.