Understanding the Difference Between Drink Driving and Drug Driving in NSW

on September 16, 2025

Drink driving and drug driving are two of the most serious road safety offences in New South Wales (NSW), contributing to a significant number of accidents, injuries, and fatalities each year. While both involve impaired driving, they differ in legal definitions, testing methods, penalties, and available defences. With the NSW government’s ongoing focus on road safety through the Road Safety Plan 2021, understanding these differences is essential for drivers to avoid violations and navigate charges if accused. For individuals facing these offences, expert legal guidance can mean the difference between a conviction with long-term consequences and a successful defence. At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, we specialise in criminal law and traffic law, providing expert legal representation to defend clients against drink driving and drug driving charges in Sydney. As leading Sydney criminal lawyers and traffic law specialists, we are committed to protecting your rights, securing non-conviction outcomes like section 10 dismissals, and achieving the best possible result in NSW courts.

In this comprehensive article, we delve into the key differences between drink driving and drug driving in NSW, covering their legal frameworks, testing procedures, penalties, defences, and how a lawyer can help.

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.

The Legal Framework for Drink Driving in NSW

Drink driving, formally known as driving with a prescribed concentration of alcohol (PCA), is regulated under section 110 of the Road Transport Act 2013. This law prohibits driving or attempting to drive a vehicle with a blood alcohol concentration (BAC) above the legal limit, measured in grams of alcohol per 100 millilitres of blood. The offence is categorised into novice-range (above 0.00 for learners/provisionals), special-range (above 0.00 for bus/truck drivers), low-range (0.05–0.079), mid-range (0.08–0.149), and high-range (0.15 or above). Additionally, driving under the influence (DUI) of alcohol without a specific BAC is covered under section 112, based on police observations of impairment.

NSW Police enforce drink driving laws through random breath testing (RBT), where drivers must provide a breath sample. If positive, a more accurate breath analysis or blood test is conducted at a police station within two hours. As of August 21, 2025, updates from the Road Safety Plan 2021 have increased RBT operations and mandatory interlock programs for serious offences. Cases are heard in the Local Court (e.g., Downing Centre Local, Parramatta Local Court, Liverpool Local Court, Bankstown Local Court or Campbelltown Local Court).

The legal BAC limits are:

  • Full licence holders: Under 0.05.
  • Learner, provisional (P1/P2), and special category drivers (e.g., taxi, bus, heavy vehicle): 0.00 (zero tolerance).

Drink driving is a strict liability offence, meaning the prosecution only needs to prove the BAC was above the limit—no proof of impairment is required for PCA charges.

Key Elements of Drink Driving Offences

To convict for PCA, the prosecution must prove:

  1. You were driving or attempting to drive a vehicle.
  2. Your BAC exceeded the legal limit for your licence type.
  3. The test was conducted lawfully.

Example: A full licence holder with a BAC of 0.06 after two glasses of wine at dinner is charged with low-range PCA, even if no impairment is evident.

The Legal Framework for Drug Driving in NSW

Drug driving in NSW is regulated under section 111 of the Road Transport Act 2013, which prohibits driving with the presence of prescribed illicit drugs in your oral fluid, blood, or urine. Unlike drink driving, drug driving is detected through roadside drug testing (RDT) for substances like THC (cannabis), methamphetamine (ice/speed), MDMA (ecstasy), and cocaine. The offence is strict liability, meaning the mere presence of the drug is sufficient for a conviction, regardless of impairment. For prescription drugs like morphine or oxycodone, a defence exists if taken as prescribed (section 111(2)), but for illicit drugs, no such defence applies.

NSW Police conduct RDT using oral fluid swabs, with positive tests leading to laboratory confirmation. As of August 21, 2025, reforms from the Road Safety Plan 2021 have expanded RDT operations and introduced penalties for combined alcohol-drug offences. Cases are heard in the Local Court, with similar court processes to drink driving.

The key difference from drink driving is the focus on drug presence rather than a specific concentration level, except for THC, where any detectable amount is illegal.

Key Elements of Drug Driving Offences

To convict for drug driving, the prosecution must prove:

  1. You were driving or attempting to drive a vehicle.
  2. A prescribed illicit drug was present in your system, confirmed by laboratory test.
  3. No valid defence (e.g., prescription for certain drugs).

Example: A driver testing positive for THC after using cannabis the previous day is charged with drug driving, even if not impaired.

Key Differences Between Drink Driving and Drug Driving in NSW

While both offences involve impaired driving, they differ in several aspects:

1. Definitions and BAC/Drug Limits

  • Drink Driving: Based on BAC levels (e.g., 0.05 for full licences, 0.00 for learners/provisionals/special categories). Impairment is inferred from BAC.
  • Drug Driving: Based on the presence of prescribed illicit drugs (e.g., THC, methamphetamine). No “safe” level; any detectable amount is illegal, regardless of impairment.
  • Key Difference: Drink driving has graduated limits and categories (low/mid/high-range), while drug driving is zero-tolerance for illicit substances.

Example: A full licence holder with a BAC of 0.04 is legal, but any THC detection is illegal.

2. Testing Methods

  • Drink Driving: Roadside breath test (RBT) for alcohol, followed by evidential breath or blood analysis at a police station. Tests are quick and BAC-specific.
  • Drug Driving: Roadside oral fluid swab for drugs, followed by laboratory confirmation. Swabs detect recent use (e.g., THC up to 24 hours), but lab tests can detect longer.
  • Key Difference: Drink driving tests are instantaneous and quantitative (BAC measurement), while drug tests are qualitative (presence/absence) and require lab confirmation, taking days or weeks.

Example: A positive RBT leads to immediate suspension for high-range PCA (section 224), while a positive drug swab requires lab results before charges.

3. Penalties

  • Drink Driving: Fines up to $5,500, disqualification up to 5 years, imprisonment up to 2 years, mandatory interlock for high-range/repeat offences (section 211), costing $2,200–$2,500 annually.
  • Drug Driving: Fines up to $3,300, disqualification up to 5 years, imprisonment up to 2 years for subsequent offences (section 111). Mandatory interlock for repeat offenders.
  • Key Difference: Drink driving penalties are graduated by BAC level (low/mid/high-range), while drug driving penalties are based on presence and offence history, with no “range” categories. Both carry similar maximums for repeat offences.

Example: A first-time low-range drink driving offender faces a $2,200 fine and 6-month disqualification, while a first-time drug driving offender faces a $2,200 fine and 6-month disqualification.

4. Defences

  • Drink Driving: Unlawful testing (section 36, LEPRA), testing errors (e.g., two-hour rule), medical conditions causing false positives, necessity, or mental health diversion (section 14, Mental Health and Cognitive Impairment Forensic Provisions Act 2020).
  • Drug Driving: Prescription defence for certain drugs (section 111(2)), unlawful testing (section 18D), or mental health diversion. No defence for illicit drugs like THC.
  • Key Difference: Drink driving allows quantitative defences (e.g., BAC below limit), while drug driving defences focus on legality of drug use (e.g., medical cannabis, but THC presence is still illegal for driving as of 2025).

Example: A driver on prescribed opioids has a defence for drug driving if taken as directed, but no equivalent for drink driving BAC limits.

5. Detection and Enforcement

  • Drink Driving: RBT with breathalysers; immediate suspension for high-range (section 224).
  • Drug Driving: Oral fluid swabs for roadside detection; lab confirmation required.
  • Key Difference: Drink driving tests are quicker and more definitive at the roadside, while drug tests require lab analysis, delaying charges.

6. Consequences

  • Drink Driving: Criminal record, disqualification, interlock, fines, imprisonment, demerit points (3–5), increased insurance.
  • Drug Driving: Similar consequences, but with focus on drug-specific testing and zero tolerance for illicit substances.
  • Key Difference: Drug driving can involve additional charges for possession (Drug Misuse and Trafficking Act 1985), while drink driving focuses on PCA levels.

Example: A repeat drug driving offender faces up to $3,300 fine and 12-month disqualification, similar to mid-range PCA, but may also face drug possession charges.

7. Sentencing and Alternatives

  • Both allow non-conviction outcomes like section 10 dismissals or CROs (Crimes (Sentencing Procedure) Act 1999), avoiding records and disqualification.
  • Key Difference: Drink driving often involves TOIP ($150–$200) for mitigation, while drug driving (may) further require drug counselling.

Testing Procedures for Drink and Drug Driving

Drink Driving Testing

  1. Roadside RBT: Police request a breath sample. Positive test leads to arrest and station analysis.
  2. Breath Analysis: Evidential test at a police station.
  3. Blood Test: Optional if breath test refused or unavailable.

Drug Driving Testing

  1. Roadside Drug Test: Oral fluid swab for THC, methamphetamine, MDMA, cocaine.
  2. Lab Confirmation: Positive swab leads to lab analysis; charges follow confirmation.
  3. Blood/Urine Test: If impairment suspected without drugs detected (section 18E).

Key Difference: Drink driving tests are faster and quantitative (BAC measurement), while drug tests are qualitative (presence/absence) and require lab verification, delaying proceedings.

Penalties for Drink Driving vs Drug Driving

Penalties escalate with offence severity and history:

  • Drink Driving (Low-Range First Offence): Up to $2,200 fine, 6-month disqualification (min. 3 months).
  • Drug Driving (First Offence): Up to $2,200 fine, 6-month disqualification (min. 3 months).
  • Drink Driving (High-Range Subsequent): Up to $5,500 fine, 2 years imprisonment, 5-year disqualification (min. 2 years).
  • Drug Driving (Subsequent): Up to $3,300 fine, 9 months imprisonment, 12-month disqualification (min. 6 months).

Key Difference: Drink driving penalties are graduated by BAC (low/mid/high-range), while drug driving penalties are based on presence and history, with similar maximums for repeat offences. Both carry mandatory interlock for high-risk cases (section 211), costing $2,200–$2,500 annually.

Additional Consequences

Both offences result in a criminal record (10 years unless spent, Criminal Records Act 1991), demerit points (3–5), licence suspension, increased insurance premiums, and potential employment/travel restrictions.

Example: A full licence holder convicted of mid-range PCA faces a 12-month disqualification, while a similar drug driving conviction leads to a 6-month disqualification for first offence, but both may require interlock.

Defences to Drink Driving and Drug Driving Charges

A Sydney criminal defence lawyer can raise specific defences for each offence:

Drink Driving Defences

  • Unlawful Testing: Police lacked reasonable grounds.
  • Testing Errors: Breathalyser malfunction or two-hour rule violation.
  • Medical Conditions: False positives from diabetes or medication.
  • Necessity: Driving to avoid immediate harm.
  • Mental Health Diversion: Treatment under section 14, Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Drug Driving Defences

  • Prescription Defence: For legal medications like opioids taken as prescribed (section 111(2)).
  • Unlawful Testing: Swab conducted without suspicion (section 18D).
  • Lab Errors: Contaminated samples or false positives.
  • Mental Health Diversion: Similar to drink driving.
  • No Impairment: While presence is sufficient for conviction, mitigation can reduce penalties.

Key Difference: Drink driving defences often challenge BAC measurements, while drug driving defences focus on legality of drug use or testing validity.

Non-Conviction Outcomes: Both allow section 10 dismissals or CROs (Crimes (Sentencing Procedure) Act 1999), avoiding records and disqualification for first-time or minor offences.

The Court Process for Drink Driving and Drug Driving Charges

The process for both offences is similar, typically requiring a Local Court appearance:

  1. Arrest or Court Attendance Notice (CAN): Immediate suspension for high-range PCA or positive drug test (section 224).
  2. Bail Application: A lawyer applies for bail (Bail Act 2013) if arrested.
  3. Court Mention: Enter a plea in the Local Court. Guilty pleas may proceed to sentencing; not guilty pleas schedule a hearing.
  4. Hearing or Sentencing:
    1. Not Guilty: The court examines evidence (e.g., breath/swab results, police statements).
    1. Guilty/Convicted: The magistrate imposes penalties, considering mitigating factors like TOIP completion or remorse.
  5. Appeals: Challenge outcomes in the District Court within 28 days (Crimes (Appeal and Review) Act 2001).

Key Difference: Drink driving cases often rely on BAC evidence, while drug driving requires lab confirmation, potentially delaying proceedings.

Note: The Downing Centre Local Court closure until late 2025 redirects cases to nearby courts like Parramatta or Liverpool.

How a Sydney based Criminal Lawyer Helps

At Nicopoulos Sabbagh Lawyers, we:

  • Assess Defences: Identify grounds to dismiss charges (e.g., unlawful testing).
  • Secure Non-Conviction Outcomes: Advocate for section 10 dismissals or CROs.
  • Negotiate Plea Deals: Reduce high-range to mid-range PCA or secure withdrawals.
  • Present Mitigating Factors: Highlight remorse, TOIP completion, or hardship.
  • Appeal Suspensions/Convictions: Challenge immediate suspensions or court penalties.
  • Navigate Courts: Manage cases amidst disruptions like the Downing Centre closure.

Example: We secured a section 10 dismissal for a first-time drug driving offender, avoiding a conviction and disqualification by proving the drug was prescribed.

Steps to Take if Charged with Drink Driving or Drug Driving

  1. Engage a Lawyer: Contact Nicopoulos Sabbagh Lawyers at info@nslaw.net.au for a free consultation.
  2. Exercise Right to Silence: Avoid statements to police without legal advice (section 89, Evidence Act 1995).
  3. Gather Evidence: Collect medical records, prescriptions, or witness statements to support defences.
  4. Complete TOIP: Enrol in the Traffic Offender Intervention Program to show reform.
  5. Prepare for Court: Work with your lawyer to build a defence or mitigation case.
  6. Appeal if Necessary: Challenge convictions or suspensions within 28 days.

Why Choose Nicopoulos Sabbagh Lawyers?

We offer:

  • Specialised Expertise: Deep knowledge of the Road Transport Act 2013.
  • Proven Results: Securing dismissals, reduced penalties, and overturned suspensions.
  • 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

Drink driving and drug driving in NSW differ in definitions (BAC vs. drug presence), testing (breath vs. swab), penalties (graduated BAC ranges vs. zero tolerance), and defences (quantitative challenges vs. prescription defences). Both carry severe consequences, but a Sydney criminal defence lawyer can mitigate outcomes through non-conviction orders or defences. At Nicopoulos Sabbagh Lawyers, our Sydney criminal lawyers and traffic law specialists provide expert representation to protect your licence and future. Contact us today at info@nslaw.net.au, 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au for assistance.

Why Choose Nicopoulos Sabbagh Lawyers Criminal Lawyers & Traffic Lawyers YOUR Leading Sydney Criminal Defence & Traffic Lawyers to represent you in your Traffic Law Matter?

Nicopoulos Sabbagh Lawyers are the leading Law firm in Traffic Law matters as our office appears at ALL Courts in NSW on a regular basis in ALL Traffic Law matters.  No matter is too complex for Nicopoulos Sabbagh lawyers, your Traffic Sydney Lawyers, so be sure to book your first Free Consultation today!

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It is very important that you speak with a lawyer so that you can get the appropriate legal advice which you require prior to going to court. 

Our team of experienced solicitors are there for you and can help you answer all your questions, so be sure to contact your Sydney Lawyers, Nicopoulos Sabbagh Lawyers.

*This article correctly reflects the Laws of NSW as of 21st 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

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