Your Rights as a Driver in NSW when Confronted by Police


On July 13, highway patrol officers approached and stopped a 29-year-old mother who was driving along Wentworth Street with front end damage which caught the attention of the officers. This prompted them to follow and stop her to conduct a random breath test.

Parked outside the Commercial Hotel, the mother gave a negative alcohol reading, but when police then requested for her to comply with a drug test, she refused saying that it’s “not in the constitution”.

Police then took her to the police station where she again refused to provide a sample of her saliva for a drug test when requested by police. She told police that she “recently performed oral sex on her boyfriend and didn’t want to get done for anything he has been taking.”

She was charged for not displaying P-plates, driving an unsafe vehicle, and refusing to comply and provide an oral fluid test.

The 29-year-old mother failed to appear at the Port Kembla Local Court when the Magistrate proceeded to convict her in her absence and adjourned the matter for sentencing.

On the day of sentence at the Port Kembla Local Court, she denied making the oral sex remarks to police, and told the court that she actually refused to take the drug test because she was previously convicted of drug driving charge about 8 months earlier at the Wollongong Local Court, and “didn’t want to get conned again by the system she had a grievance against”.

She requested the Court to give her leniency on the basis that she is a physics university student on a low income and 18 weeks pregnant with her 2nd child. Local Court Magistrate Thompson reduced her fine to a total of $1,200 with a 6-month disqualification period due to her financial struggles and embarrassment already suffered.

The penalty for a second time offender of drug driving such as the 29-year-old mother in this case under the law is a fine of up to $2,200 and an automatic licence disqualification period of 12 months (the Magistrate or Judge has the discretion to reduce this to a minimum of 6 months).

Drug Driving Laws NSW

Road side drug tests are expected to reach around 200,000 per year on our roads by 2020.

NSW have controversial drug driving laws which criminalises the driving of a vehicle with the mere presence or trace of a prohibited drug in the blood, urine or saliva. This applies regardless of there being no evidence that the mere presence of the drug has any influence on the driver and his/her capability to drive safely.

Regardless of there being absolutely no evidence that a trace or mere presence of a drug in your body will impair your driving skills, an offender guilty of driving with the presence of drugs (other than alcohol) in the oral fluid, blood or urine will face a criminal conviction, and a fine of up to $1,100 (for a first time offender).

In addition, if convicted, a first-time offender will also face an automatic driver licence disqualification of 6 months (the Judge or Magistrate can reduce this down to a minimum of 3 months) under section 111 of the Road Transport Act 2013 (NSW). A Judge or Magistrate also has the discretion to impose a longer period of disqualification than the automatic.

What are the Defences to a Drug Driving Charge?

Your drug driving charge will be dismissed if any of the following common defences apply to your drug driving case:

  • If police conducted a drug test on you at your home.
  • If police conducted a drug test (oral fluid sample) 2 hours after you were alleged to have been driving.
  • If police conducted a urine or blood test 4 hours after you were alleged to have been driving.
  • If police conducted a drug test after a doctor has considered that it will be prejudicial to your proper treatment and care.
  • If the drug in your blood, urine or saliva was found to be morphine which you had earlier consumed for medical reasons under a doctor’s prescription.
  • If the drug in your blood, urine or saliva was found to be morphine which was due to earlier consuming a codeine-based medicine purchased from the pharmacy.
  • If the drug in your blood, urine or saliva was found after you had consumed it a few days or weeks ago, and at the time of driving you held an honest and reasonable belief that it would not have stayed in your body for this long.
  • You refuse to give a drug test or oral fluid sample for medical reasons.

Your Rights and the Law as a Driver in NSW

If ever confronted by a police officer on the road while driving, below are a list of some important rights that you should be aware of as a driver in NSW:

  1. In circumstances the vehicle is stationary, police can only require you to comply with a random drug test (mobile drug test) if you’re at least seated in the driver seat of a vehicle on a road intending to drive and commence taking steps considered ‘more than merely preparatory to driving’. However, the police cannot do this if you’re seated in the driver seat of a vehicle on a road but not driving.
  2. You can refuse to give a drug test to police if police have stopped you on your drive way or any other area of your home for the purposes of a drug test.
  3. You can refuse to give police an oral fluid sample if two hours have expired from the time they believe you were driving a vehicle.
  4. You can refuse to give police a urine or blood test if four hours have passed from the time that police believe you were driving a vehicle.
  5. You can refuse to give police a drug test or oral fluid sample if you are unable to due to medical reasons. It’s a good idea to have a doctor’s letter expressing the basis for this with you in case you are stopped by police for a random breath test.
  6. Police have the power to request NSW drivers to stop in order for police to do a random breath test or random drug test (mobile drug test) under clause 6 of Part 2, Division 3 of Schedule 3 of the Road Transport Act 2013 (NSW). Refusing to stop your vehicle when requested by police in these circumstances attracts a penalty of up to $1,100 fine.
  7. Police have the power to request a NSW driver to comply with giving an oral fluid drug test which determines the presence of drugs at the road side after police have stopped you for (on the road). Refusing to give police this test attracts a penalty of $1,100. You will not face a licence disqualification period for this offence.
    • Police are allowed to arrest you and take you to the police station (or to a nearby drug bus) for the purposes of conducted a second test. this is a proper more accurate test called an oral fluid sample. This can only be done if the initial road side drug test gives a positive indication of drugs. Refusing to give police a second test (oral fluid sample) attracts heavier penalties of a criminal conviction, $3,300 fine and 3 years automatic licence disqualification period (which can be reduced down to a minimum of 6 months by the Judge or Magistrate).
    • Police are not allowed to use the road side drug test (the initial test) against you in court to prove you had a drug in your system. This is why they need to do a second test.
  8. THC, speed, and ecstasy can be detected by an oral fluid sample test (the second test). However, morphine and cocaine can only be detective by a blood or urine test.
    • You can face a penalty of up to $2,200 fine if you stop police from taking an oral fluid test or sample.
    • You can face a penalty of up to $2,200 fine if you stop a doctor (or registered nurse) from attempting to take a sample of your blood or urine.
  9. Police can use enough force as considered necessary to take you to a hospital in order for you to be held there for the purposes of providing a blood sample or urine sample if:
    • You tried to give an oral fluid sample but physically couldn’t comply; or
    • You refused a sobriety assessment, or where you did a sobriety assessment, but police still have a belief (if reasonably held) that you’re effected by a drug.
    • You will face a penalty of up to $3,300 fine and up to 3 years automatic disqualification period if you refuse to give a blood sample.
    • You will face a penalty of up to $3,300 fine and/or a term of imprisonment of up to 18 months, in addition to an automatic disqualification period of up to 3 years if you refuse to give a urine sample.

Drug Driving Laws Compared to Drink Driving Laws NSW

Drink driving on the other hand criminalises the act of driving a vehicle with a specified extent of alcohol concentration in the breath or blood. The extent of the alcohol reading indicates the extent of driving impairment and risk to other road users.

For example, high range drink driving is where the concentration of alcohol in the breath or blood is 0.15 or more. The higher that reading is, the higher the impairment to drive and danger to road users. The penalty for high range drink driving in NSW includes a criminal conviction, 18 months imprisonment and/or $3,300 fine. In addition, if convicted, an offender will face a compulsory driver licence disqualification of up to 9 months after which time you can only drive with an interlock device installed for the next 2 years.

Mid-range drink driving is where the concentration of alcohol in the breath or blood is 0.08 but less than 0.15. The reading is lower than the high range threshold to reflect the fact that an offender’s driving although impaired, is less impaired than someone driving with a high range reading.

Mid-range drink driving carries a maximum penalty of up to 9 months jail and/or $2,200 fine and a compulsory disqualification period of a minimum 3 months or maximum 6 months plus a 1-year minimum interlock period thereafter under the mandatory interlock program if this is considered your ‘first offence’.

This means that after completing the compulsory disqualification period, you may drive with an interlock device installed into the vehicle you intend to use for the minimum 1 year interlock period.

where it is considered a ‘second or subsequent offence’, the mid-range drink driving penalties are heavier, of up to 1 year jail and/or $3,300 fine and a compulsory disqualification period of a minimum 6 months or maximum 9 months plus a 2-year minimum interlock period thereafter where you may drive with the interlock device installed.

For an outline on penalties if the court grants you exemption from participating in the interlock program where it would normally apply to you, click on our link here: Penalties for drink driving if I am exempt from doing the interlock program.

Call us if you have a question. Our team are available 24/7 for a free first consult with an experienced expert traffic lawyer in Parramatta, Newcastle, Wollongong, Penrith and other locations in NSW.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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