Traffic offence Law
Drive with an illicit drug present

Drive with an illicit drug present

Driving with the presence of an illicit drug, (other than alcohol), found in oral fluid, blood or in urine is an offence. The most common method of testing is by way of a Mobile Drug Testing unit (MDT) conducted by Police by way of an oral fluid sample.

As one of the most reputable drug lawyers in Sydney we know that a person does not have to be impaired by drugs to be charged with a drug driving offence. Having a proscribed drug present in your system is enough to support a charge of drug driving.

Read more

Section 4 of the Road Transport Act 2013, provides a list of prescribed illicit drugs: –

  • Active THC (Cannabis);
  • Methylamphetamine (Speed/Ice);
  • Methylenedioxymethamphetamine (MDMA or Ecstasy);
  • Benzoylmethylecgonine (Cocaine); and
  • Morphine (unless for medicinal purposes).

The law in relation to Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample is found in section 111 of the Road Transport Act 2013 (NSW) which states: –

A person must not, while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug:

drive a motor vehicle;
or
occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion;
or
if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

An offence of Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample will be heard in the Local Court

Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample is a criminal offence and the burden of proof rests with the Prosecution.

The Prosecution must prove the accused is guilty beyond reasonable doubt.

To establish Drive while there is a prescribed illicit substance present in an oral fluid, blood or urine sample the Prosecution must prove each of the following matters beyond reasonable doubt: –

  • The offender drove a motor vehicle; or
  • The offender occupied the driving seat of a motor vehicle and attempted to put the motor vehicle in motion; or
  • If the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)-occupied the seat in a motor vehicle next to a learner driver who is driving the vehicle; and 
  • There was the presence of prescribed illicit drug in person’s oral fluid, blood or urine.

The following options are available to the accused depending on his/her instructions: –

  1. We’ll negotiate with the Prosecutor to have the charges withdrawn, downgraded and/or the Police Fact Sheets amended; or
  2. We’ll enter a plea of not guilty and proceed to a hearing; or
  3. We’ll enter a plea of guilty to the charges and proceed to dispute the Police Fact Sheets at a special “disputed facts” hearing; or
  4. We’ll enter a plea of guilty with full acceptance of the Police Fact Sheets; and
  5. We’ll submit thoroughly researched legal submissions requesting that the Court not record a criminal conviction.