In New South Wales (NSW), driving under the influence of drugs or alcohol poses significant risks to road safety, leading to strict laws and severe penalties under the Road Transport Act 2013. Both drug driving and drink driving are serious traffic offences that can result in fines, licence disqualification, imprisonment, and a criminal record, impacting employment, travel, and personal life. While these offences share similarities, they differ in their legal definitions, detection methods, penalties, and defences, making it crucial for drivers to understand their distinctions. At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, we specialise in criminal law and traffic law, providing expert legal representation to defend clients against drug and drink driving charges in Sydney. As leading Sydney criminal lawyers and traffic law specialists, we are committed to securing the best possible outcome in NSW courts, whether through challenging charges or minimising penalties.
In this comprehensive guide, we explore the differences between drug driving and drink driving in NSW, detailing their legal frameworks, detection processes, penalties, defences, court processes, and practical steps to take if charged.
Please note that this page or any other pages on our website (including any other social media platforms for Nicopoulos Sabbagh Lawyers) are not to be considered as a substitute for legal advice or even other professional advice. It should also be noted that accessing of this information from this website does not create a client-lawyer relationship. For legal Advice, please be sure to contact our office at info@nslaw.net.au, 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au.
Legal Definitions and Frameworks
Both drug driving and drink driving are governed by the Road Transport Act 2013, enforced by NSW Police and Transport for NSW (TfNSW) under the Road Safety Plan 2021, which has intensified roadside testing. However, the offences differ in their legal definitions and substances involved.
Drink Driving
Drink driving, or driving with a prescribed concentration of alcohol (PCA), is defined under section 110 as operating a vehicle with a blood alcohol concentration (BAC) above the legal limit, measured in grams of alcohol per 100 millilitres of blood. Categories include:
- Novice Range: BAC > 0.00 for learners, P1/P2, or special category drivers (e.g., taxi, bus).
- Special Range: BAC > 0.00 but ≤ 0.02 for specific drivers (e.g., heavy vehicle operators).
- Low Range: BAC 0.05–0.079 for full licence holders.
- Mid Range: BAC 0.08–0.149.
- High Range: BAC ≥ 0.15.
Additionally, section 112 covers driving under the influence (DUI) of alcohol without a specific BAC, based on observed impairment (e.g., erratic driving). Drink driving is a strict liability offence, requiring only proof of BAC exceedance.
Example: A P1 driver with a BAC of 0.01 faces a novice-range PCA charge, while a full licence holder with a BAC of 0.10 faces a mid-range PCA charge.
Drug Driving
Drug driving is defined under section 111 as driving with the presence of illicit drugs in your oral fluid, blood, or urine, or driving under the influence of drugs that impair your ability. Illicit drugs include:
- THC (cannabis).
- Methylamphetamine (ice, speed).
- MDMA (ecstasy).
- Cocaine.
Unlike drink driving, drug driving under section 111(1) does not require impairment—just the presence of a prohibited drug, detected via roadside oral fluid testing or lab analysis. Section 112 also covers DUI of drugs, where impairment is observed without specific drug levels.
Example: A driver testing positive for THC after smoking cannabis days earlier faces a drug driving charge, even if not impaired.
Detection Methods
Drink Driving Detection
- Random Breath Testing (RBT): NSW Police conduct roadside RBT under section 13, using breathalysers to measure BAC. If positive, a secondary breath analysis is conducted at a police station or mobile unit within two hours (section 14).
- Police Observations: For DUI charges (section 112), police rely on signs like slurred speech or swerving.
- Refusal: Refusing a breath test is an offence under section 15, with penalties similar to high-range PCA.
Process: A driver stopped at an RBT with a BAC of 0.06 undergoes breath analysis, confirming low-range PCA, leading to a charge or fine.
Drug Driving Detection
- Mobile Drug Testing (MDT): Police conduct roadside oral fluid tests under section 18B to detect THC, methylamphetamine, MDMA, or cocaine. A positive result leads to a second swab or lab analysis of oral fluid, blood, or urine.
- Impairment-Based DUI: For section 112 charges, police observe signs like dilated pupils or erratic driving, often followed by blood/urine tests.
- Refusal: Refusing a drug test is an offence under section 18E, with penalties akin to drug driving.
Process: A driver testing positive for THC via MDT faces a drug driving charge, confirmed by lab analysis, even if the drug was used days earlier.
Key Difference: Drink driving relies on precise BAC thresholds, while drug driving often hinges on the mere presence of drugs, regardless of impairment, making detection more straightforward but contentious.
Penalties for Drug Driving vs Drink Driving
Penalties vary by offence type, severity, and whether it’s a first or subsequent offence within five years, as of August 22, 2025 (one penalty unit = $110). Below are key penalties under the Road Transport Act 2013.
Drink Driving Penalties
- Low-Range PCA (BAC 0.05–0.079):
- First Offence: $2,200 fine, 6-month disqualification (minimum 3 months), 3 demerit points.
- Subsequent Offence: $3,300 fine, 12-month disqualification (minimum 6 months), 3 points.
- Mid-Range PCA (BAC 0.08–0.149):
- First Offence: $3,300 fine, 9 months imprisonment, 12-month disqualification (minimum 6 months), mandatory interlock (12–24 months, ~$2,200–$2,500/year).
- Subsequent Offence: $5,500 fine, 12 months imprisonment, 3-year disqualification (minimum 12 months), interlock (24–48 months).
- High-Range PCA (BAC ≥ 0.15):
- First Offence: $3,300 fine, 18 months imprisonment, 3-year disqualification (minimum 12 months), interlock (24–48 months).
- Subsequent Offence: $5,500 fine, 2 years imprisonment, 5-year disqualification (minimum 2 years), interlock (48–60 months).
- Novice/Special Range:
- First Offence: $2,200 fine, 6-month disqualification (minimum 3 months), 3 points.
- Subsequent Offence: $3,300 fine, 12-month disqualification (minimum 6 months), 3 points.
- DUI (Alcohol, No BAC):
- First Offence: $3,300 fine, 18 months imprisonment, 3-year disqualification (minimum 12 months).
- Subsequent Offence: $5,500 fine, 2 years imprisonment, 5-year disqualification (minimum 2 years).
Drug Driving Penalties
- Presence of Illicit Drug (Section 111):
- First Offence: $2,200 fine, 6-month disqualification (minimum 3 months).
- Subsequent Offence: $3,300 fine, 12-month disqualification (minimum 6 months).
- DUI (Drugs, Impairment-Based):
- First Offence: $3,300 fine, 18 months imprisonment, 3-year disqualification (minimum 12 months).
- Subsequent Offence: $5,500 fine, 2 years imprisonment, 5-year disqualification (minimum 2 years).
- Refusal to Test:
- First Offence: $3,300 fine, 18 months imprisonment, 3-year disqualification (minimum 12 months).
- Subsequent Offence: $5,500 fine, 2 years imprisonment, 5-year disqualification (minimum 2 years).
Additional Consequences (Both Offences)
- Immediate Suspension: Police may suspend your licence on the spot for high-range PCA or drug-related DUI (section 224).
- Criminal Record: Convictions remain for 10 years (3 for juveniles) unless spent (Criminal Records Act 1991).
- Employment Impact: Job loss for professional drivers (e.g., taxi, truck operators).
- Insurance Issues: Increased premiums or policy denials.
- Travel Restrictions: Countries like the USA may deny entry for criminal convictions.
- Vehicle Impoundment: Police may seize your vehicle (section 239).
Key Differences:
- Drink driving penalties are tiered by BAC levels, with mandatory interlock for mid/high-range PCA.
- Drug driving penalties are uniform for presence-based charges, with no interlock requirement but longer disqualifications for DUI.
- Drug driving lacks demerit points, unlike low/novice-range PCA.
Example: A first-time low-range PCA offender faces a $2,200 fine and 3-month disqualification, while a first-time drug driving offender (THC presence) faces a similar fine and disqualification but no points.
Defences for Drug Driving vs Drink Driving
A Sydney criminal defence lawyer can raise defences to challenge both charges, but the approach varies:
Drink Driving Defences
- Unlawful Testing: Breath test conducted outside the 2-hour window (section 14) or without reasonable suspicion (section 36, LEPRA).
- Testing Errors: Faulty breathalyser or lab errors.
- Medical Conditions: False positives from conditions like diabetes.
- Necessity/Duress: Driving to avoid harm or under coercion.
- Mental Health Diversion: Treatment under section 14, Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
Drug Driving Defences
- No Illicit Drug: Prescription medications (e.g., codeine) not prohibited under section 111.
- Unlawful Testing: MDT or lab analysis errors, or improper police procedure (section 18B).
- Lack of Impairment: For DUI charges, arguing no actual impairment (section 112).
- Necessity/Duress: As above.
- Mental Health Diversion: As above.
Key Difference: Drug driving defences often focus on testing validity or prescription drug use, while drink driving defences may challenge BAC thresholds or medical causes.
Example: A driver charged with drug driving proves the detected substance was a legal prescription, securing a dismissal, while a drink driving defendant challenges a faulty breathalyser, avoiding conviction.
Court Process for Drug Driving vs Drink Driving
Both offences are typically handled as summary matters in the Local Court (e.g., Parramatta, Liverpool, Campbelltown), with the Downing Centre Local Court closed until late 2025.
- Arrest or Court Attendance Notice (CAN): Police issue a CAN or arrest you (section 99, LEPRA).
- Bail Application: If arrested, a lawyer applies for bail (Bail Act 2013).
- Court Mention: Enter a plea (guilty/not guilty). Guilty pleas proceed to sentencing; not guilty pleas schedule a hearing.
- Hearing or Sentencing:
- Not Guilty: The court examines evidence (e.g., test results, police statements).
- Guilty/Convicted: The magistrate imposes penalties, considering mitigation (e.g., TOIP completion, $150–$200).
- Appeals: Challenge outcomes in the District Court within 28 days (Crimes (Appeal and Review) Act 2001).
Key Difference: Drug driving cases may involve more complex evidence (e.g., lab reports), while drink driving relies heavily on breath analysis.
Example: A drug driving defendant pleads not guilty, challenging MDT accuracy, while a drink driving defendant pleads guilty, securing a section 10 dismissal with TOIP evidence.
Steps to Take if Charged
- Remain Calm: Cooperate with police but avoid admissions (section 89, Evidence Act 1995).
- Cease Driving: Avoid further charges, especially if suspended (section 224).
- Engage a Lawyer: Contact Nicopoulos Sabbagh Lawyers at info@nslaw.net.au or 0427 101 499.
- Gather Evidence: Collect medical records, prescriptions, or witness statements.
- Complete TOIP: Enrol to show rehabilitation.
- Prepare for Court: Decide on a plea with your lawyer.
- Comply with Outcomes: Follow penalties or appeal within 28 days.
- Prevent Recurrence: Avoid substances before driving.
Example: A driver charged with drug driving engages a lawyer, proves prescription use, and secures a dismissal.
How a Sydney Traffic Lawyer Helps
At Nicopoulos Sabbagh Lawyers, we:
- Assess Defences: Identify testing errors or legal grounds.
- Gather Evidence: Compile medical records, TOIP certificates, and references.
- Secure Non-Convictions: Advocate for section 10 dismissals.
- Represent in Court: Navigate Local and District Courts.
- Appeal Outcomes: Challenge penalties in the District Court.
Example: We secured a section 10 dismissal for a first-time drug driving offender, avoiding a conviction.
Why Choose Nicopoulos Sabbagh Lawyers?
We offer:
- Specialised Expertise: In-depth knowledge of the Road Transport Act 2013.
- Proven Results: Securing dismissals and reduced penalties.
- Ethical Representation: Adhering to Legal Profession Uniform Law (NSW).
- Accessible Support: Contact us at info@nslaw.net.au, 0427 101 499, or www.nslaw.net.au.
Conclusion
Drug driving and drink driving in NSW, while similar, differ in detection, penalties, and defences. Drink driving uses BAC thresholds and interlock programs, while drug driving focuses on drug presence. Both carry severe penalties, but expert legal representation can mitigate outcomes. At Nicopoulos Sabbagh Lawyers, our Sydney criminal lawyers and traffic law specialists provide dedicated support to defend your case. Contact us today at info@nslaw.net.au, 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au.
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*This article correctly reflects the Laws of NSW as of 25th August 2025.
*Please note that this page or any other pages on our website (including any other social media platforms for Nicopoulos Sabbagh Lawyers) are not to be considered as a substitute for legal advice or even other professional advice. It should also be noted that accessing of this information from this website does not create a client-lawyer relationship