Driving whilst having illicit substances present in your system (referred to here as ‘drug-driving’) is becoming more and more prevalent in the community. It is probably not surprising that, in NSW, it is a criminal offence to take drugs and drive a vehicle.

The regime for criminalising drug-driving in NSW is largely by way of two separate offences (as always, subject to some exceptions).

Firstly, there is an offence for simply having drugs present in your oral fluid, blood, or urine. This offence does not rely on any threshold being crossed with respect to level of detection or impairment. Any detection of prohibited drugs in your system (without lawful excuse, such as a prescription) whilst operating a vehicle will enliven the offence provisions.

Penalties for these ‘presence offences’ are less severe and typically include short disqualifications from driving and fines.

The second category of offence is the ‘driving under the influence of drugs (or alcohol)’. In this offence, a level of impairment must generally be proven, which is why the offence is far less prevalent than the ‘presence’ offence set out above.

Driving under the influence is more serious and can attract penalties that include terms of imprisonment, as well as large fines and longer periods of disqualification from driving.

In the newest regime of offences, there are now also combined drink driving and drug-driving charges, which have significantly increased penalties for those caught with both alcohol and illicit drugs in their system. We will discuss these combined offences in a future article.

In addition to all the above, there are, as one would imagine, offences for refusing to submit to testing for drugs (and alcohol).  Pursuant to Schedule 3 of the Road Transport Act 2013 (NSW), refusal to submit to oral testing may result in a fine of up to 10 Penalty Units ($1,100). Refusal or failure to provide an oral fluid sample when directed to do so by a police officer attracts a maximum penalty of 30 Penalty Units ($3,300) for a first offence, along with an accompanying 3-year automatic licence disqualification (which can be reduced to a minimum of 6 months). A second or subsequent offence attracts up to 50 Penalty units ($5,500) and/or 18 months’ imprisonment , along with an automatic licence disqualification of 5 years (which can be reduced to a minimum of 12 months). Finally, hindering or obstructing the taking of a sample is punishable by fine of up to 20 Penalty Units ($2,200).

NSW Police, MDT’s and the testing and charging process

You may remember the NSW Police campaign for Mobile Drug Testing (MDT) and that ‘every police car is an MDT’. MDT, it is far less prevalent than the Random Breath Test (RBT), but the number of drug related offences before the courts is now sharply on the rise.

Obviously, the only way drugs can be detected in your system is by your submission to a roadside MDT, a secondary test (see below), or through otherwise submitting to a test (such as mandatory testing after a car accident).  The most significant aspect however, for people who use (or have used) drugs, is how long the drugs remains detectable in your system – noting that ANY level of drugs in your system will adversely impair your ability to operate a vehicle.

NSW Police have the power to stop a car for the purpose of an MDT in much the same way as they do for an RBT.

The purpose of the stop needs to be to conduct the roadside test. If the initial test is positive, similar to a positive reading in a random breath test, it will be the usual course for you to be placed under arrest for the purpose of a secondary test. The secondary test is often in a mobile police bus or can be back at the station, depending on the circumstances.

In the secondary test, it is usual for two samples to be taken, one of which is tested on the spot, and the other is sent away for laboratory testing. It is not unusual to test positive at roadside and negative on secondary testing, only for the laboratory testing to later confirm a positive result. If the second test is positive, you will be charged for the offence – this may occur either upon a positive MDT result or after the sample has been analysed (and found to contain the presence of illicit drugs) at the police Forensic and Analytical Science Service (FASS) lab.

Similarly, it is not unusual for one of the tests to incorrectly indicate a drug that is not present. The system is not perfect, and it is subject to intense ongoing debate.

There are certain circumstances that police are not authorised to take a sample for drug testing. The most common of these are that the person is admitted to hospital (where the hospital will usually carry out the test, particularly if it is following an accident), or where the relevant time for testing (2 hours for oral fluid and 4 hours for urine or blood samples) has expired.

Finally, if you have arrived home safe (similarly to drink driving), you are also not allowed to be orally tested at your home.  Police are however, within their powers to conduct (and charge on the basis of) a visual sobriety test – after forming a view that you had (immediately prior) been driving a vehicle whilst under the influence.

Defences

Drug driving offences are (subject to a recent decision discussed below) offences of ‘strict liability’. This means that the prosecuting authority (usually police) do not have to prove that you intended to commit the offence (or any other relevant mental element ordinarily required to be proved). This does not, however, mean that no defences are available.

Necessity may be a defence available whereby you are able to prove that the offending took place in circumstances of dire consequences (such as the imminent death of another person, whom you were rushing to hospital). It is unlikely that this defence will arise in most cases.

By far the most usual defence is ‘honest and reasonable mistake of fact’, which remains available to offences of strict liability.

In layman’s terms, this defence is one whereby the offender ‘simply didn’t know’ the drugs were in their system. For example, they didn’t take drugs, they weren’t around drugs, or there is no explanation for the drugs being present in their system. Once this defence is raised, the prosecution then bears the responsibility of disproving the defence.

The defence of honest and reasonable mistake of fact, at time of writing, remains in question due to a very recent District Court decision (Narouz v R [2023] NSWDC 293) in which His Honour Judge Buscombe ruled that the ‘presence offence’ is not one of strict liability and is instead one of ‘absolute liability’. Absolute liability offences are rare and do not have honest and reasonable mistake of fact available as a defence. It is anticipated that this decision will be imminently appealed.

So what should I do?

If you’ve been subjected to roadside testing and you want advice, or if you’ve been charged with a drug-driving offence, you will need specialist representation to ensure that you are given the right advice and guided through often difficult process of legal proceedings. Give our friendly team at Mitchell and Co Lawyers a call on (02) 8507 2091 to ensure that you are prepared and that you give yourself the best opportunity you can to minimise your penalty.