Drug Driving in NSW: What Happens After a Positive Roadside Test

NSW police conduct random drug testing through Mobile Drug Testing (MDT) operations, and can also test any driver they stop. Since September 2024, the process changed: if you return a positive initial saliva swab, police now conduct a secondary confirmatory test roadside — no longer requiring a trip to a police station or drug bus in most cases. If that second test is also positive, you are prohibited from driving for 24 hours immediately, and a laboratory sample is sent for analysis.

Only a confirmed positive laboratory result can support a criminal charge. If the lab confirms the presence of a prescribed illicit drug, you will receive a Court Attendance Notice. The drugs tested for are THC (cannabis), methylamphetamine (ice/speed), MDMA (ecstasy), and cocaine.

There are two separate drug driving charges in NSW, and the difference matters enormously. A "presence offence" under section 111 of the Road Transport Act 2013 (NSW) applies when a prescribed illicit drug is detected in your oral fluid, blood or urine — you do not need to have been impaired, affected, or even aware the substance was still detectable. This is the charge that catches many first-time offenders off guard: cannabis in particular can remain detectable for days after use, long after any effect has worn off.

Driving under the influence (DUI) is the more serious charge, requiring evidence that you were actually impaired by the drug. It carries the possibility of imprisonment even on a first offence, whereas a first presence offence does not carry a term of imprisonment.

For a first presence offence, the court can impose a fine of up to $2,200 and a licence disqualification of between three and six months. There is no term of imprisonment. That said, a conviction is still recorded on your criminal record, which can have real consequences for employment, professional licences, and travel.

For a second or subsequent offence within five years, the penalties increase sharply: fines up to $2,200, licence disqualification from six months to unlimited, and for DUI-category offences, imprisonment becomes a genuine risk.

Yes — in the right circumstances. A court can deal with a first drug driving matter without recording a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999, or impose a Conditional Release Order without conviction under section 9. These outcomes are generally only available for low-level first offences with strong personal circumstances, and become very unlikely if there was a crash, a refusal to test, or any aggravating factor.

Getting advice before you enter any plea is the most important step. The way you prepare your case — the material put before the court about your character, circumstances, and insight — can make the difference between a conviction and a non-conviction outcome.

Refusing a roadside drug test carries penalties greater than a positive result. A refusal to provide an oral fluid sample attracts a fine of up to $3,300 and a licence disqualification for a minimum of six months with no maximum limit. It is almost never in a person's interests to refuse.