Please note this article only relates to drink driving and driving with a prescribed restricted substance in your oral fluid.
What has changed?
From 1st September 2024, there have been several major changes in New South Wales about how roadside drug and alcohol testing is conducted.
- Roadside Drug Testing is becoming more prevalent with some police cars now being able to complete this testing without the need to take you to a Police Station or a drug testing bus. NSW Police will no longer await drug sample being tested by a laboratory before taking initiating legal proceedings.
- There are now combined offences for someone who is found to be over their breath alcohol limit and have the presence of a prescribed illicit substance in their system. These new offences come with much higher penalties and longer disqualification periods.
What are they testing for?
In New South Wales the substances Police are currently testing for are:
- Alcohol, and
- Prescribed Illicit Substances, which currently include:
- Cocaine,
- Methylamphetamine (Also known as “Ice” or “speed”),
- 3,4-methylenedioxymethylamphetamine (also known as “ecstasy”, “caps”, “molly” or “MDMA”)
- delta-9-tetrahydrocannabinol (THC, the psychoactive compound of cannabis)
How will they test me initially?
Police conduct breath tests passively, by requiring you to talk out loud, or directly, by requiring you to blow into a device.
For drug testing they take a sample of your saliva by having you drag the test down your tongue.
When can they test me?
If you are the driver of a motor vehicle or are supervising a learner driver. Or if they reasonably suspect you were either of these. Police can also test you if you are occupying the driver’s seat or attempting to put the motor vehicle into motion.
Generally speaking, the Police have two hours from when you were driving (including attempting to drive and occupying the driver’s seat) to complete the testing, or four hours in the case of taking a blood sample.
When can’t they test me?
- If you are home.
- Outside of the time limits – this means that if more than two hours have passed since the incident, you should not consent to the test (or four hours ago if you are being asked to submit to a blood test).
- If would not be appropriate due to your medical needs (for example, because it would be dangerous to your health following a serious crash).
- You have been admitted to hospital unless certain requirements are met to permit the test to occur.
Know Your Limits!
Illicit Prescribed Substances
- When it comes to what is the legal limit for a drug you would think it is easy to keep your licence. However, the roadside drug testing methods used in NSW can return a positive result well after the impairment window of the relevant drug is over.
- Many of these drugs will still be detectable over 4 weeks after you last consumed them. Everyone will metabolise the illicit substance at different rates, sometimes at a very different rate.
- You cannot have any detectable amount of Cocaine, Methylamphetamine, Ecstasy or Cannabis in your oral fluid or urine.
- This applies even if you’re legally prescribed medicinal cannabis. You cannot drive while THC remains in your bodily fluids.
- Even if there is no suggestion that your driving was impaired by the illicit drug in your system, you can face criminal consequences up to and including a sentence of imprisonment.
Alcohol
- For Learner Drivers and Provisional Licence Holders – the alcohol limit is zero.
- If you are one of the following drivers, your breath or alcohol limit is below 0.02:
- All drivers subject to a zero-alcohol limit.
- Driver of a Heavy vehicle with a GVM or GCM over 13.9 tonnes.
- Transporting dangerous goods or radioactive material.
- Driving a Coach.
- The driver of a public passenger vehicle for hire (think taxi or hire car).
- Driving for hire or reward (Uber, Didi, etc).
- Disqualified from holding a licence (but you should not be driving in the first place).
- Suspended from holding a licence (again, you should not be driving in the first place).
- Never Held a driver’s licence (as above, you should not be driving unless you hold a valid licence).
- Your licence has expired by more than 6 months (but you should not be driving with an expired licence).
- All other drivers – the breath or blood alcohol limit is below 0.05.
What Happens if I am Over my Limit?
If you are over your prescribed limit when Police stop you, or if you’re involved in a collision, the Police will place you under arrest for further testing.
In either case, they have the power to take you to a place that is reasonable to conduct this further testing. For breath testing, this will normally be a Police Station or a Breath Testing Bus. In the case of drug testing, many police vehicles can now conduct the evidentiary drug testing at the location where they stop you.
If the breath analysis returns a result that is over the limit that applies to you, then you will have your licence suspended immediately. You will likely also be issued a Court Attendance Notice to attend court and be faced with the potential to lose your licence, a large fine or even a term of imprisonment. Long gone are the days of courts ‘letting you off’ with a stern warning!
How can we help if you are charged or given a penalty notice for being over the limit?
At Conditsis Lawyers, we have extensive experience dealing with these sorts of matters and understand the impact losing your licence can have on you, your family and employment. Our Criminal Law team can assist in answering your questions and helping you through the legal process.
Book a free first consultation with your criminal law team by calling 02 4324 5688 or complete our Contact Us form.
