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Driving a vehicle under the influence of drugs is a serious criminal offence because it significantly impairs an individual’s judgement to operate and control a vehicle effectively.

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    Who will be required to submit to a roadside drug test?

    A driver, motorcycle rider or supervising licence holder who is driving on a New South Wales road or related area may be requested to undertake an oral fluid test to determine the presence of the following three illegal substances:

    • Delta-9-tetrahydrocannabinol (also known as ‘THC’) – the active component of cannabis;
    • Methylamphetamine, also known as “ice”, “speed” and “crystal meth”; and
    • Methylenedioxymethylamphetamine, also known as “MDMA” or “ecstasy”.

    The reason why Police target these three drugs is because they are the most well known and commonly used illicit substances by drivers. Given the high police presence at music festivals and other dance related events, Police may also target roads within the vicinity of such places (drivers of heavy vehicles may also be targeted). It is however important to note that passengers will not be required to undertake an oral fluid test provided they are not supervising a learner driver.


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    How long after using cannabis can delta-9-tetrahydrocannabinol (THC) be detected?

    Given the development of roadside drug testing, Police will be able to detect the presence of cannabis several hours after use.

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    How long after consuming ecstasy or methylamphetamine (speed, ice etc) can these drugs be detected?

    Roadside drug testing will also detect the use of speed, ice and ecstasy up to 48 hours after use.

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    Can delta-9-tetrahydrocannabinol (THC) be detected from passive smoking?

    No. There is no evidence to suggest that passively inhaling THC will return a positive reading.


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    How will roadside drug testing work?

    Police will conduct a preliminary oral fluid test through the window of your vehicle, much like they do with roadside alcohol testing. You will be required to lick the test pad of the device, and the result will be known in about 5 minutes. If the result returns a negative reading, you will be entitled to drive away. However, if you test positive to the initial test, you must partake in a secondary test. This test will take about 20 minutes and will involve you providing an oral fluid sample. In the event that the test does return a positive reading, you will not be allowed to drive for 24 hours and the remaining portion of your oral fluid sample will be analysed by the State’s analytical laboratory. If the laboratory confirms a positive reading to a prohibited drug, you will be issued with a Court Attendance Notice within a couple of weeks requiring you to answer to the charge of driving with the presence of an illicit substance. You must now receive professional legal advice.


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    Possible Penalties

    • The maximum penalty for a first offence is a fine of $1,100.00 as well as a licence disqualification period of three (minimum) to six (maximum) months.
    • The maximum penalty for a second or subsequent offence is a fine of $2,200.00 and a licence disqualification period of six months to a term for six to twelve months.
    • If you refuse to comply with the roadside test, you will be fined $1,100.00. You must also accompany a Police officer to the Police truck whereby you must provide a sample of their oral fluid. If you further refuse to provide a sample, a maximum fine of $3,300.00 applies. You will also be disqualified from driving for a minimum period of six months and prohibited by Police from driving for 24 hours.

    What happens if you are unable to provide an oral fluid sample?

    An individual who genuinely attempts and is unable to provide a sample of their oral fluid will be required to provide a sample of blood. The individual will be transported to hospital under Police guard for the purposes of a blood test. This sample will then be analysed by the State’s analytical laboratory for the presence of any illegal drug. The maximum penalty for refusing to provide a blood sample is a $3,300.00 fine.

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    What about other illicit drugs?

    Drivers who have been deemed impaired by any illicit drug can be charged with the criminal offence of driving whilst under the influence or drive with the presence of cocaine or other opiate substances (in blood or urine). It is important to be aware that drivers will not be tested for these drugs.

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    Can drivers be charged with both drug and alcohol offences?

    Yes. However, if a person is prosecuted for a drive under the influence offence, they cannot also be prosecuted for a prescribed concentration of alcohol offence or presence of drugs offence.

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    If a driver tests positive to drugs will they be searched, or have their vehicles or property searched?

    In accordance with LEPRA, Police have the power to search persons and/or vehicles if they suspect on reasonable grounds that an offence may be committed as a result of the breach.

How can Sydney Traffic Lawyers help?

Our Traffic Lawyers will carefully consider your case, advise you on all your legal options, and recommend the best way forward.

Call us now on 02 8059 7121 or contact us after hours on 0420 998 650 or text 24hrs to book an appointment with one of our solicitors.

The initial consultation is free.