Roadside Drug Testing

What is Roadside Drug Testing?

It is an offence in NSW to drive with drugs in your system. In NSW the police have the right to pull over any vehicle and ask the driver to submit to a saliva test. The saliva test tests for three drugs they are THC (tetrahydrocannabinol) found in cannabis, methamphetamine, or ecstasy. Roadside drug testing doesn’t test for heroin or cocaine but it is still an offence in NSW to drive with these drugs in your system.

What is the difference between Alcohol and Drug Road Side Testing?

The main difference between the alcohol and drug roadside testing is that alcohol Random Breath Testing (RBT) tests for driving impairment meaning the law states over a certain amount of alcohol in your blood you are impaired or unfit to drive. Drug Road Side testing, isn’t concerned about whether drugs are effecting your driving ability or reaction times, they just tests for drugs in your system.

Under the present laws it is illegal to drive with cannabis, methamphetamines, and ecstasy   in your system. Because it is illegal to drive with these drugs in your system the police do not need to prove you are impaired or affected by the drugs. Unlike alcohol, you can drive with some alcohol in your system, the law recognises you are impaired when the amount of alcohol per blood is higher than 0.02 or 0.05 (depending on your license). If the amount of alcohol is higher you will be arrested and charged with Driving Under the Influence.

This doesn’t mean if your roadside drug testing comes back positive that Police won’t try and charge you with the additional charge of Driving under the influence of a drug. For that charge to stick Police must prove your driving was impaired, meaning your driving was affected by the drugs in your system. If Police feel that you are impaired they may take you to hospital for a blood or urine test. Police will also ask for blood and urine test if you have been involved in a traffic fatality.

How do roadside drug tests work?

The first step is a roadside saliva swipe if this comes back positive Police will arrest you and take you to a police station. You will then be given a second swab test. If again you test positive Police will order you not to drive for 24 hours. If it is negative you will be allowed to leave and drive your car away. No matter the result your sample will still be sent to the government Drug Analysis Laboratory (DAL) in Sydney for analysis. If the DAL report is positive you will be sent a court summons regardless of the second test being negative.

If you want to challenge the Police tests or DAL findings. You have the right to ask DAL for part of the sample taken from you so you can organise for it to be independently tested. Another good idea is to organise for your GP or Doctor to give you a blood test, as soon as possible after the event, the results can be supportive evidence for court if you do it quickly after the police testing.

Can I refuse roadside drug test?

In NSW it is an offence to refuse to submit to a roadside drug test or RBT. The maximum penalty you face if you refuse is $1100 fine. There is no set minimum licence disqualification for road side drug testing but the court has discretion to disqualify licences for all traffic offences as it sees fit.

What is the penalty?

If you are found guilty of drug driving the maximum penalty for a first offence is $1100 fine plus three months suspended licence. The maximum penalty for a second offence is $2200 fine and six months suspended licence. The court can deal with the matter under a section 10. A section 10 refers to, section 10 of the Crimes (Sentencing Procedure) Act 1999. This section allows the Court that finds you guilty of an offence, to discharge you without recording a conviction. Therefore, if there is no conviction, there is no criminal record. Additionally, there is no loss of driver’s license and no other penalty. Under section 10 the court can only impose a good behaviour bond.

If there is a fatality involved the maximum penalty for causing death while drug driving is 10 years’ imprisonment. If you are charged with driving under the influence of drugs the maximum penalty increases to 14 years’ imprisonment. 

What are my rights?

You don’t need to tell the Police that arrest you about your drug use. You do have the right to be silent. At every stage of the legal/arrest process you have a right to silence. However in some circumstances, for example traffic offences, you do have to give the police some information like your name and license. The Legal Aid website has some useful information about police powers and your rights. If you do tell Police that you consumed or self administered drugs the previous day they will record this information on what’s known as a Fact Sheet. Fact Sheets are submitted to the court and usually seen by magistrates as an accurate reflection of events leading to you being charged.

What can you do to limit the risks?

The easiest way to avoid testing positive for drug driving is to not drive while there is a chance that drugs may remain in your system. Use public transport or sharing the driving with friends who don’t have drugs in their system. Consider setting up a designated driver system like people do when they go out drinking.

What to do if I am charged with drug driving?

Legal Aid can provide you with legal advice before you go to court. Legal Aid can only represent you in court for traffic offences if there is a real possibility of a jail sentence (for example traffic accident where a fatality occurred). Check out Legal Aid website for more information about representation in court.

Write to your local member

You can also let your local member of parliament know that you feel these laws are unfair. Write a letter or start a petition about how these laws are not about making the roads safer by removing impaired or dangerous drivers but designed to persecute drivers.

For more information about Drug Driving and roadside Testing check out:

Drugs and Driving (drug info)

Drugs, driving and you (Legal Aid New South Wales)

Drug Driving (notguilty.com.au)

Complaints and advice (NSW Council for Civil Liberties)