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Drug Driving

Driving under the influence of drugs is a dangerous activity as it increases the risk of having a crash.

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

A driver, motorcycle rider or supervising licence holder on a NSW road or road related area (eg public car park) can be subjected to oral fluid tests to detect the presence of the following three illicit drugs:

• Delta-9-tetrahydrocannabinol (THC), the active component of cannabis.
• Methylamphetamine (‘ice’, ‘speed’, ‘crystal meth’, ‘base’ etc).
• Methylenedioxymethylamphetamine (MDMA or ‘ecstasy’).

These three drugs are targeted because they are known to be among the most prevalent illicit drugs used by drivers. Police will also target roads around venues used for ‘rave’ and dance parties, suspected by Police to be linked to drug driving. NSW Police operations will target heavy vehicle drivers. Vehicle passengers other than supervisors of learner licence holders will not be required to undertake an oral fluid test.

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

Roadside drug testing technology will detect recent usage of cannabis several hours after use.

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

Roadside drug testing technology will detect recent usage of speed, ice and ecstasy up to 48 hours after use.

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

No, there is no evidence to suggest that any THC in the oral fluid as a result of passive smoking will be able to be detected by the oral fluid testing technology.

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 you test negative to this test you will be able to drive away. However, if you test positive to the first test, you will have to go with a Police officer and provide an oral fluid sample in the Police support vehicle. This second test should take about 20 minutes. If you test positive to the second test, you will be prohibited from driving for 24 hours, and the remaining portion of your oral fluid sample from this test will be sent to the State’s analytical laboratory, confirmatory analysis. If you test positive to this test, you will be issued a Court Attendance Notice within a few weeks of your roadside drug test with the charge of driving with the presence of an illicit drug. At this point, you will need to get a lawyer.

Possible Penalties

• The penalty for a first offence is a maximum $1,100 fine and three (minimum) to six months (maximum) licence disqualification.
• The penalty for a second or subsequent offence is a maximum $2,200 fine and licence disqualification for minimum six months up to an unlimited period.
• If a person refuses to be tested at the roadside, they can be fined $1,100. They will also have to accompany a Police officer to the Police truck where they will have to provide a sample of their oral fluid. If they refuse to provide an oral fluid sample, a maximum fine of $3,300 applies, plus licence disqualification for a minimum of six months. A driver who refuses to be tested can also be prohibited from driving for 24 hours by Police.

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

A person who has genuinely attempted, but is unable to provide a sample of their oral fluid, will be required by Police to provide a sample of blood. The person will be taken by Police to a hospital to have the blood sample taken. The state’s analytical laboratory will analyse the sample for the presence of any drug. If the individual refuses to provide a blood sample, a maximum $3,300 fine applies.

What about other illicit drugs?

Drivers found to be impaired by any illicit drug can currently be prosecuted under the ‘drive whilst under the influence’ offence. There is also a new offence of drive with the presence of cocaine or heroine in blood or urine. However drivers will not be randomly tested for these drugs.

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.

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

Police have the power to search persons or vehicles if they have reasonable grounds to suspect evidence of an offence may be found as a result of the search. In most cases, no search will occur.

How can Sydney Criminal Defence Lawyers help?

Our Criminal 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.