Drive with Prescribed illicit drug

What is drive with a prescribed illicit drug?

This is offence is committed if the presence of one of the following prescribed illicit drugs has been detected in your blood, urine or oral fluid:

Cocaine
Methylamphetamine (speed/ice)
3,4-Methylenedioxy-methamphetamine (ecstacy/MDMA)
Delta-9-tetrahydrocannabinol (a cannabinoid found in cannabis – Active THC)

The mere presence of a prescribed illicit drug in your system is sufficient to trigger this charge. Driving under the influence of a drug is a separate charge that may also be laid.

The quantity of the drug in your system has no impact or bearing on the charge of drive with prescribed illicit drug.

How is driving with prescribed illicit drug detected?

Police usually perform two tests of your saliva as follows:

A roadside swab test.
A test on equipment contained at a police station or on an RBT bus, if you tested positive to the first test.
- A positive result to either of the above tests will result in a 48-hour suspension from driving.
- A positive or negative result to Test 2 will be confirmed in 6 weeks through comprehensive laboratory testing. If the laboratory result is positive, you will be issued with either a Penalty Notice or a Court Attendance notice.

Advice: Have your own forensic toxicologist perform a test immediately, or the next day, if possible.

What happens after I am detected with driving with prescribed illicit drug?

One of two things may happen:

Police may issue you with a Penalty Notice, requiring you to pay a fine.
- If you pay your fine, court attendance is not necessary. No criminal conviction will be recorded, and the matter only appears on a traffic history.
- After the fine on the Penalty Notice has been paid, TFNSW will issue you with a 3-month suspension that commences on the date advised on the suspension notice.
- A Penalty Notice provides an option to elect to have the matter heard at court. You will then be mailed a Court Attendance Notice.
Police may issue you with a Court Attendance Notice instead of a Penalty Notice, requiring you to attend court on the date specified on the notice.
- This is a police discretion that is usually reserved for repeat offenders.

What are my options?

If issued with a Penalty Notice

Pay the fine and serve a 3-month suspension (unless successfully appealed – see relevant section.) The offence is recorded on your traffic history only.
Elect to the have the matter heard at court (and subsequently be issued with a Court Attendance Notice.)

If issued with a Court Attendance Notice

Plead not guilty based on the following defence:
- Honest and reasonable mistake of fact.
  - You honestly believed that you did not have drugs in your system. (EG. Your food was spiked, or a drug has remained in your system days after the ingesting it.)
  - Your belief was reasonably held.
- This defence is available even if the presence of a drug has been detected in your system.
Plead guilty.
- Pleading guilty may not necessarily result in a conviction. 35% of people are not convicted for this offence after pleading guilty.
- If convicted, the conviction will appear on a criminal history.
- There may be a maximum fine, a reduced fine, or no fine at all.

Appealing a TFNSW suspension (This does not affect your traffic or criminal history.

The appeal must be lodged within 28 days of receiving the notice of suspension
The court will determine your:
- Your need for a licence and the impact a loss will create.
- Your character (the emphasis is different to a criminal offence character reference).
- Your driving history.
- Whether you have completed the Traffic Offender’s Program (in some cases, this is mandatory).
A court will then decide whether to:
- Allow the appeal and cancel the suspension.
  - Demerit points remain on your traffic history.
- Vary or reduce your suspension.
  - Your suspension is effective from the date you attend court.
  - After the period of suspension is served, your points will reset to zero.
- Dismiss the appeal, and confirm the 3 months suspension.
  - Your suspension is effective from the date you attend court.
  - This decision is final. It cannot be appealed to a higher court.
- Make any other order that the court sees fit.

What are the penalties or outcomes available?

s 10 dismissal

No fine is incurred.
No loss of points.
No disqualification period / suspension is lifted.
No conviction.

Conditional release order “CRO” (with or without conviction)

This is usually subject to a period of good behaviour.
If good behaviour is breached, you may re-sentenced for the original offence, as well as for the offence that breaches the good behaviour.

Conviction (first offence)

An automatic disqualification of 6 months.
Magistrate’s discretion to reduce the disqualification to 3 months.
Maximum disqualification of 6 months.
A maximum fine of $2,200.

Conviction (second or subsequent offence)

An automatic disqualification of 12 months.
Magistrate’s discretion to reduce the disqualification to 6 months.
Maximum disqualification – unlimited.
A maximum fine of $3,300.

Not guilty

Charges are dismissed.

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