Roadside Mobile Drug Tests

It is an offence in NSW to drive with drugs in your system. The police have the right to pull over any vehicle and ask the driver to submit to a saliva test. These are known as Mobile Drug Tests (MDT) and these test for the presence of THC, methamphetamine, cocaine and ecstasy. Although MDTs don’t currently test for other substances such as heroin, it is still an offence to drive with these drugs in your system.

Drugs can be detected in your system for a long time after you use them. How long they stay in your system can depend on the type of drug, how much you took, how often you use it, and other factors such as your health levels and body type. Please see our Drug Testing Frequently Asked Questions for more information.

If you fail an MDT, you will be prohibited from driving for 24 hours. The sample is sent to a laboratory for more precise analysis, and if the presence of an illegal drug is confirmed, you may be charged. You can also be arrested and taken to a hospital for a blood and urine test if a police officer has a reasonable suspicion that you were driving under the influence of drugs.

Differences with alcohol testing

The main difference between the alcohol and drug roadside testing is that alcohol Random Breath Testing (RBT) tests for driving impairment rather the presence of alcohol. This mean the law states that if you have more than a certain amount of alcohol in the bloodstream (ie: a blood alcohol level of 0.2 or 0.5 depending on your licence), you are considered unfit to drive.

Roadside MDTs, on the other hand, simply test for the presence of a substance. Even if you are not impaired (for instance, due to the length of time since the substance was taken), you are still considered to be committing an offence.

If you test positive, the police may also seek to charge you with “driving under the influence of a drug”. For this charge to be upheld, they need to prove that your driving was impaired by the presence of a drug or 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?

Police carrying out an MDT use a saliva swab and drug-screening equipment. If this first test is positive, you will need to do a second swab at a mobile drug bus or a police station. The second sample is sent to a laboratory for analysis. If this second sample tests positive for drugs, depending on the levels of the drug found, you may either be charged with driving the the presence of an illicit drug in your system or the more serious charge of driving under the influence of an illicit drug.

If again you fail the second test, 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.

Can I refuse an drug test?

As with Random Breath Testing for alcohol, it is an offence to refuse a test. Please note the penalties for refusing a test are greater than testing positive (see below for details).

Penalties

According to the State Library of NSW’s Drug Info page, the maximum penalty for driving with THC, methamphetamine or ecstasy is a fine of $1100 for a first offence (in the last five years), and $2200 for subsequent offences.

As of April 2022, drivers who have a positive roadside drug test confirmed by a laboratory can be fined (issued a penalty notice) for driving with the presence of an illicit drug in their system. Offenders will subsequently have their licence automatically suspended for three months. The maximum suspension for a first offence is 6 months.

If it is a second serious traffic offence in the past five years, the minimum disqualification period on conviction is 6 months, with an “automatic” disqualification period of 12 months. The maximum court-imposed fine is $3300.

As with random alcohol testing, it is an offence to wilfully refuse to provide a saliva sample and to consume a drug after driving and before undergoing a saliva test (Road Transport Act 2013). For a first offence, the minimum disqualification period is six months. The maximum court-imposed fine is $3300.

A driver under the influence of an illegal drug who causes the death or injury of another road user can face criminal charges, with the possibility of a prison term if convicted. A person convicted of driving under the influence of a drug and causing death is liable for a maximum penalty of 10 years' jail (or 14 years if there are circumstances of aggravation such as speeding).

Please note, there are harsher penalties if you are also found guilty of driving under the influence of a drug (a more serious offence than simply driving with the presence of a drug in your system). You can see the full list of penalties for dug-related driving offences here.

Your rights

For a general overview of your rights in relation to the police, you can check out this Legal Aid resource. For specific traffic offences relating to drugs, Legal Aid gives an overview of how you can go about challenging charges you feel are unfair or false. Community Legal Centres can also give you free legal advice.

Challenging legal discrimination

Many people point out that there is an unfair double standard when it comes to roadside tests for alcohol compared to other drugs. With alcohol, you are only tested for impairment, but with illicit drugs, you are tested simply for the presence if the drug in your system regardless of whether you are impaired at the time. Given that drugs often stay in your system for days after being consumed, this means you can face charges despite not being impaired while driving. If you wish to raise this matter, you can write to your local member of NSW Parliament.