The Offence of Drug Driving in New South Wales

The New South Police Force carried out one of its trademark statewide drink and drug driving blitzes from 12 am on Thursday, 12 February, to 4 am on Sunday, 15 February 2026.

Operation RAID (Remove All Impaired Drivers) led to 604 allegedly testing positive for drug driving, out of 9,126 tests, along with 167 said to have been drink driving, out of 121,000 random breath tests.

“Too many lives have been shattered because someone thought they were fine to drive when they weren’t,” said NSW police minister Yasmin Catley, following the blitz. “Too much of what happens on our roads is preventable. Police are out there every day, but they can’t be everywhere – we need drivers to make better, safer choices – for themselves, their passengers and everyone else.”

However, the report on NSW Police News regarding Operation RAID doesn’t provide the full picture.

Introduced in this state in 1982, random breath testing for alcohol ascertains scientifically-proven levels of alcohol in the blood, which show that a person is too intoxicated to drive. However, as for roadside drug testing, introduced here in 2007, it involves a test which only indicates if there is the presence of four select drugs in the saliva of a driver, so there is no indication regarding intoxication.

As drug driving tests rely on the mere presence of select illicit substances, this means an individual might have consumed their drug long ago and still test positive for drug driving and have their licence suspended, even though they’re not high behind the wheel. And although this has been the subject of a decadelong social justice campaign, the authorities have doubled down on these dodgy laws.

The offence of driving with the presence of certain drugs

The offence that over 600 NSW constituents were recently found to have broken, as part of Operation RAID, was that of driving with the presence of certain drugs (other than alcohol) in oral fluid, blood or urine, contrary to section 111 of the Road Transport Act 2013 (NSW) (the RTA). This offence is also commonly referred to as drug driving.

Section 4 of the RTA defines prescribed illicit substances as one of the following: THC (delta-9-tetrahydrocannabinol) or the psychoactive component of cannabis, MDMA (3,4-methylenedioxymethylamphetamine) or ecstasy, crystal methamphetamine or ice, as well as cocaine.

All of these drugs are known to remain in a driver’s system after the effects of the substance have worn off. This is especially so for cannabis or THC, which can be traced in the body weeks after consumption.

To establish that a defendant has committed the offence of drug driving, the prosecution must prove beyond a reasonable doubt that the individual drove or attempted to drive a motor vehicle, whilst a prescribed illicit substance was in their saliva, blood or urine. So, there is no requirement to prove that the driver was impaired at time of testing, but only that traces were present in their system.

Since May 2019, the initial response to a driver testing positive for drug driving is an on-the-spot fine, which is currently set at $702, and an automatic 3 month licence disqualification. Prior to this, individuals testing positive to drug driving were required to attend court to face potential conviction, fining and licence disqualification.

However, drivers who do test positive and are provided with an on-the-spot fine can challenge this in court. If found guilty, a first-time offender challenging a charge in court can face conviction, a $2,200 fine and a 6 month licence disqualification period, which can be dropped to 3 months.

And for drivers facing second or subsequent drug driving offences, these carry up to $3,300 fines and 12 month license disqualifications, which the court can drop to 6 months or increase without limit.

The lack of defences for drug driving

The offence of drug driving had been considered a strict liability offence, which means a prosecution does not have to prove a mental fault element. So, unlike other crimes that see the prosecution attempting to establish whether a defendant intentionally performed their criminal act, or were reckless or negligent to the fact, instead, it just has to be shown they committed the act.

Being a strict liability offence meant that those charged with drug driving could argue in court the defence of honest and reasonable mistake of fact, which maintains that the accused held an honest and reasonable opinion that involved a mistake of fact, but if that had been true, then they would not be guilty.

In a 2016 NSW case, then NSW Magistrate David Heilpern found driver Joseph Carrall was not guilty of drug driving, as they had last smoked cannabis nine days prior to testing positive on the roadside, and they had been told by a NSW police officer that waiting a week to drive after smoking cannabis would likely mean a driver would not test positive to traces in their system.

Yet, in an appeal of a 2023 Liverpool Local Court decision, NSW District Court Judge Mark Buscombe found in July 2023, that the original decision finding a drug driver guilty, despite arguing honest and reasonable mistake of fact after having tested positive for cocaine driving, because he found that drug driving in NSW is actually an absolute liability offence.

This decision has changed everything about drug driving. Now that drug driving is considered an absolute liability offence, the prosecution only needs to prove that the action happened, or in the case of drug driving, that the person was driving with the presence of a prescribed illicit drugs in their system. And there is absolutely no defence or excuse to challenge a charge of drug driving.

This means that following an instance of testing positive to drug driving in NSW and receiving the on-the-spot fine and disqualification, there is little or close to no chance of successfully challenging this in court.

Disqualified for taking legally prescribed medicine

“We are considering changes to the law in NSW in relation to medicinal cannabis use, impairment and roadside drug testing,” said NSW premier Chris Minns in relation to questions during NSW budget estimates on 5 March 2026.

“The reason for that is that the latest indications suggest to us that we have, I think, about 400,000 people in the state who access medicinal cannabis via prescription,” the top NSW Labor minister continued. “We’re seeing hundreds of thousands of people accessing it as a legitimate health alternative to even more powerful drugs.”

This strategic divulging of this information during budget estimates last week marks the top echelons of power in NSW finally admitting that having hundreds of thousands of legally prescribed medicinal cannabis users being potentially pulled up by police, and then fined and having their driver licence suspended for taking the drug their doctor told them to, doesn’t really sound like justice served.

Medicinal cannabis became legal to use nationwide in Australia in October 2016, and it appears that 10 years later, NSW major party politicians have finally succumb to this idea. Indeed, whilst the laws have reflected that using cannabis medicine and driving whilst not affected by it is completely legal for the last decade, NSW police drug driving operations have not run on this basis.

NSW Greens MLC Cate Faerhmann, former NSW Magistrate and Southern Cross University Dean of Law David Heilpern and NSW Legalise Cannabis Party MLC Jeremy Buckingham have all been pushing for change in this area.

This is a battle that has been fought in many other local jurisdictions, including Victoria, where the reform has occurred, whilst Tasmanian police have always recognised the defence.

“People have been managing chronic pain, cancer treatment, PTSD and other serious conditions legally with medicinal cannabis since 2016, but our driving laws haven’t kept up,” said Faerhmann, following Minns’ announcement.

“For years, I’ve been hearing from medicinal cannabis patients who are faced with an impossible choice between accessing life changing medication or risk losing the ability to drive to work or drop their kids to school.”

“I already have a bill before parliament,” she added. “The Greens are ready to use our numbers in the upper house to pass sensible laws that will end the discriminatory roadside drug testing regime and maintain strong road safety protections.”