Random driver drug testing
It is an offence under section 111 of the Road Transport Act 2013 (NSW) to drive with THC (the psychoactive ingredient of cannabis), methamphetamine or ecstasy ‘present’ in the driver’s saliva, blood or urine (although only saliva is usually tested).
The police are allowed to conduct random roadside testing of drivers to test for the presence of these drugs. The roadside tests involve a saliva test using drug screening equipment. If the initial saliva test indicates positive, then the driver must undertake a second saliva swab at a mobile drug bus or police station.
The second sample is sent to the laboratory for analysis, whether it is positive or negative. But if the second swab shows positive, the police issue the driver with a direction not to drive for 24 hours. If the laboratory analysis confirms the presence of THC, methamphetamine or ecstasy, the driver is issued with a court attendance notice for the offence. It is the analysis by the laboratory, not the roadside test results, which the police rely on as evidence in court.
It is also an offence to drive with morphine or cocaine present, but these substances will not be detected by saliva swab.
The maximum penalty for driving with THC, methamphetamine or ecstasy is a fine of $1100 for a first offence (at least in the last five years), and $2200 for a second or subsequent offence. On conviction for a first offence, the driver must be disqualified from holding a driver's licence for a minimum of three months (with six months the ‘automatic’ period of disqualification). If it is a second serious traffic offence in the last five years, the minimum disqualification period on conviction is six months, with a 12-month ‘automatic’ period.
The licence disqualification periods are mandatory. They can only be avoided if the magistrate deals with the case under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to impose no conviction for the offence.
As for the similar law about random alcohol testing, it is an offence to wilfully refuse to provide a saliva sample (Road Transport Act 2013, Schedule 3, clause 6), and to consume a drug after driving and before undergoing a saliva test (Road Transport Act 2013, Schedule 3, clause 18).
Driving under the influence
It is an offence under section 112 of the Road Transport Act 2013 (NSW) to drive 'under the influence' of a drug (or alcohol). Proof of this offence requires proof beyond reasonable doubt that the driver was intoxicated to some degree by the drug or alcohol.
Since the introduction of breathalysers and random breath testing for alcohol, drink driving offences are now much more commonly charged as driving with the relevant 'prescribed concentration of alcohol' under section 110 of the Road Transport Act 2013(NSW). This in effect bypasses any need to prove intoxication - the presence of a particular concentration of alcohol in a person's system is sufficient evidence for the offence to be proved.
If the police reasonably suspect that a person is driving under the influence of a drug, they have the power to take them to a hospital for a blood or urine test for the presence of drugs, under the supervision of a doctor. The sample is divided into two. One half is sent to government laboratories and the other half is given to the person for independent analysis.
It is an offence to refuse to submit to a blood test or a urine test in these circumstances (Road Transport Act 2013, Schedule 3, clause 17). It is likewise an offence to wilfully alter the amount of drug in your blood or urine before having the test, unless it is more than two hours since you were driving (Road Transport Act 2013, Schedule 3, clause 18). The maximum penalty for both these offences is a $3300 fine and 18 months' imprisonment, with licence disqualification for a minimum of 12 months. If it is the person's second major traffic offence in five years, the maximum penalty becomes a $5500 fine and two years' imprisonment, and disqualification for two years.
Police can obtain blood or urine samples from drivers involved in fatal road accidents.
The maximum penalty for causing death while driving under the influence of a drug is 10 years' imprisonment (Crimes Act 1900 (NSW), section 52A). If the court is satisfied that you were 'very substantially impaired' by the influence of a drug or combination of drugs, the maximum penalty increases to 14 years' imprisonment (section 52A(2) and 52(7) of the Crimes Act 1900).