Question 1

What is the difference between drug presence and driving under the influence of drugs?

Accepted Answer

There are two distinct offences in NSW. The most common is presence of a prescribed illicit drug, where police only need to prove that cannabis (THC), cocaine, MDMA (ecstasy) or methylamphetamine (ice or speed) was present in your oral fluid, blood or urine. The prosecution does not need to prove you were affected or driving badly. The more serious offence is driving under the influence of a drug, which requires proof that your driving was actually impaired by the drug. The two offences carry different penalties, so the first step is identifying which one you are charged with.

Question 2

How does roadside mobile drug testing work in NSW?

Accepted Answer

Police conduct a roadside oral fluid test using a saliva swab at the roadside, known as mobile drug testing or MDT. If that initial test indicates a drug, a second oral fluid test is taken in the police drug testing vehicle, and the sample is then sent to a laboratory for confirmatory analysis. You are not charged on the roadside result alone. The laboratory certificate becomes the key evidence, and we examine the chain of custody, the handling of the sample and the analysis for any weakness before advising on plea.

Question 3

Can a drug driving charge be challenged?

Accepted Answer

Yes, in the right case. We consider whether the sample was correctly taken, stored and analysed, whether the certificate complies with the legislation, and whether police followed proper procedure. There is also an honest and reasonable mistake defence available in limited circumstances, for example where a driver did not know and could not reasonably have known that a drug remained in their system, particularly where cannabis can be detected days after use. Every case turns on its own facts, so we assess the evidence carefully before recommending whether to defend or to plead and focus on sentence.

Question 4

Will I lose my licence and get a criminal record for drug driving?

Accepted Answer

A first presence of illicit drug offence can be dealt with by a penalty notice with a three month suspension, but you can elect to take the matter to court. If a court records a conviction, a disqualification period applies and a criminal record results. However the court can also deal with the matter under section 10 of the Crimes (Sentencing Procedure) Act 1999, finding the charge proven but dismissing it without conviction, or imposing a Conditional Release Order, which means no conviction and no disqualification. We prepare the material courts look for to support that outcome. Your first consultation with Mikhael Lawyers is free and confidential.