Drink driving and drug driving

What is the difference between a Prescribed Concentration of Alcohol and a Drive Under the Influence offence? 

A person commits a Prescribed Concentration of Alcohol (PCA) offence when they are breath tested and record a blood alcohol level higher than the legal limit.

A person commits a Drive Under the Influence (DUI) offence when the driver's ability to drive is impaired, but there is no recorded specific test of concentration of alcohol or presence of an illegal drug. 

What is the difference between a Drive Under the Influence and drive with illicit substance present in oral fluid/blood/urine offence?

Driving with an illicit substance present in your system does not require any particular level or concentration of the drug present in your body, or for your driving to be affected at all. This is different to a Drive Under the Influence charge, which requires your driving to be impaired by an illicit substance or alcohol.

I have been charged with having both an illegal drug and alcohol in my system while driving. What does this mean?

Drink driving and drug driving are two separate offences, but since 28 June 2021 there is also a combined offence of driving with drugs and alcohol in your body at the same time. 

You may be charged with this offence if you are driving while:

• you have a mid or high range concentration of alcohol in your breath or blood, and
• you have an illegal drug present in your saliva, blood or urine.

This offence also covers a situation where:

• you are driving with a low range concentration of alcohol in your breath or blood, and you have already been convicted of a combined drink and drug drive offence, and
• you have an illegal drug present in your saliva, blood or urine.

Heavy penalties apply for this offence. If you have been charged with the combined offence of drink and drug driving, you should get legal advice.

What will happen if I am arrested for driving under the influence of drugs? 

If you have been arrested for driving under the influence of alcohol, any other drug or a combination of drugs, and you fail a sobriety assessment, police officers have the power to prohibit you from driving for up to 48 hours.     

If you have been charged with driving under the influence of drugs, you should get legal advice.

What is Mobile Drug Testing? 

Mobile Drug Testing (MDT) is testing designed to detect drivers who have recently used illicit drugs. MDT can be conducted at roadside operations along with Random Breath Testing or by NSW Police Force. The police have the power to test anybody who is driving a vehicle, attempting to put a vehicle in motion or supervising a learner driver. 

If you are stopped by police, you will be asked for your licence and to complete a breath test for alcohol. The police will then ask you to wipe an MDT test stick down your tongue to check if you have illegal drugs in your system. The results can take a few minutes and you must wait for the results to come back. 

If you are charged with a drug driving offence, you should get legal advice.

What if I refuse to take part in Mobile Drug Testing?

It is a criminal offence to refuse to take part in a Mobile Drug Testing. If you refuse, you may be charged with a serious drug driving offence.

If you are charged with a drug driving offence, you should get legal advice. 

Can I get a fine instead of having to go to court for a drink driving or drug driving offence?

Most traffic offences that involve alcohol and drugs are dealt with at Court, however after 20 May 2019, you can get a fine notice instead for:

• Low range prescribed concentration of alcohol (over 0.05 but less than 0.08), if it is a first offence
  
• Special range concentration of alcohol (above 0.02 but less than 0.05), if it is a first offence
  
• Novice range prescribed concentration of alcohol (zero alcohol permitted), if it is a first offence
  
• Driving with illicit substance present in oral fluid/ blood/urine if it is a first offence.
  

A first offence in this context means that you have not had a previous conviction or fine notice for a drink, drug or equivalent offence in the past 5 years. Second and subsequent offences within a five year period must be dealt with by the Court and carry higher penalties.

If police believe you have committed one of these offences, they can choose to either give you a fine notice and on the spot licence suspension for three months, or take you to court where a Magistrate decides the penalty. 

Can I take the fine notice to court?

Yes, you have the option of applying to take a fine to court. This will allow a Magistrate to decide your case. 

You can plead ‘not guilty’ if you want to fight the charge, or you can plead ‘guilty’ if you want a more lenient penalty than the fine.

It is important to consider that applying to take a fine to court allows the Court to impose a higher fine and a longer period of disqualification.  The Court could also record a conviction for the offence on your criminal record.

If you take the fine to court, the on the spot suspension from police will stay in place until the court date.

If you are considering applying to the Local Court to decide your fine, you should get legal advice.

Does a fine notice for drink driving or driving with an illicit substance present show up on my criminal record?

No, if you received a fine notice instead of a Court Attendance Notice for drink driving or driving with an illicit substance present in your oral fluid/blood/urine, it will not appear on your criminal record, unless you take it to court and you are convicted.

If you pay the fine and don’t go to court, it will appear on your traffic record like any other traffic fine.

Can I appeal the on the spot (immediate) police suspension?

If police gave you a fine and suspended your driver licence, and you choose to apply to have the Local Court decide your fine, the suspension will continue until your court date. 

If you want to appeal the immediate police suspension before this court date, you must lodge a separate application. You will have to demonstrate to the Court that there are exceptional circumstances why you should be allowed to continue driving until your fine is heard in court. 

For more information on licence appeals, see On the spot suspension on the My problem is about section of our website.

If you are considering appealing the on the spot police suspension, you should get legal advice.

Can I lodge a licence appeal against an RMS suspension?

Yes, this is different to an immediate police suspension. You can pay the fine and when you receive a letter from the Transport for NSW (TfNSW) (Formerly known as Roads & Maritime Services or RMS) notifying you of your suspension, you can appeal this suspension period. 

Once you lodge your appeal, the suspension period is stayed, which means you can keep driving. 

The Court can:

• grant your appeal, which means that you are not suspended and can continue driving
• reduce your suspension period
• dismiss your appeal, meaning you must serve the full suspension period
• increase your suspension period, although this is extremely rare. 

If you are considering lodging a licence appeal, you should get legal advice. 

For more information on licence appeals, see Appeal your licence suspension on the My problem is about section of our website.

Should I plead guilty or not guilty to the offence?

Whether you plead guilty or not guilty depends on whether:

• you committed the offence (whether you agree with the charges and factsheet)
  
• you have a legal defence (a legal reason for disputing the charge). 
  

Before you enter a plea, you should get legal advice.

What happens if I plead not ​guilty to the offence?

If you plead not guilty to the offence, the Magistrate may:

• list your matter on another day for a hearing
• make an order that the police serve statements and other documents (called a brief of evidence) on you or your lawyer before the hearing date. 

At the hearing you will be required to present your case and any evidence you have to the Court. This may include having witnesses attend, so that you can ask them questions to help your case. The police will also present their evidence to the Court and you will get an opportunity to ask their witnesses' questions. At the end of the hearing the Magistrate will decide whether you committed the offence. 

If you are convicted of the offence, the Magistrate will decide what penalty to give you, for example, a fine, disqualification or gaol sentence.

Before you plead not guilty to the offence, you should get legal advice before your court date.

For more information, see Responding to a charge on the My problem is about section of our website. 

What happens if I plead guil​ty?

If you plead guilty to the offence, the police will give the Magistrate:

• your Court Attendance Notice
  
• the police Factsheet, and
  
• your criminal and/or driving record.
  

You will then be able to make submissions to the Magistrate. You can make verbal submissions or write a letter to give to the Magistrate.

You can get two or three character references to give to the Magistrate. Written references about your good character can help your case in court.

For more information, see Character references on the My problem is about section of our website.

After the Magistrate has read all the material and listened to what you and the prosecutor have to say, they will decide what sentence (penalty) to give you.

Before you go to court, you should get legal advice. 

For more information, see Pleading guilty on the My problem is about section of our website. 

Can I use a written notice​ of pleading?

It is best to attend court in person. If you can't go to court, you should get legal advice about your options. If you don't attend, the Court may issue a warrant for your arrest or find you guilty and give you a sentence in your absence. 

In some circumstances you may be able to use a written notice of pleading instead of going to court. A written notice of pleading is a form that lets you tell the Court whether you are pleading guilty or not guilty.

You need to submit a written notice of pleading at least seven days before your court date. If you want to submit your notice later than this, you should contact the Court to see if they will accept it.

The Magistrate may decide that you still need to go to court in person even after you have submitted a written notice of pleading.

You can't use a written notice of pleading if you are on bail for the offence.

Sometimes using a written notice of pleading is not your best option. Before you submit a written notice of pleading, you should get legal advice.

For more information, see Pleading guilty or Pleading not guilty on the My problem is about section of our website. 

​What if the details on my factsheet are inc​​​orrect?

If you disagree with some of the details on your factsheet you should get legal advice before going to ​​court.

Do I need to get a lawyer to rep​resent me?

You don't have to have a lawyer represent you in court but it may be in your interests to have one, for example, where it is not your first offence, or where you may be facing a gaol penalty. 

If you decide not to have a lawyer to represent you, you should still get legal advice before going to court.

Will Legal Aid NSW rep​resent me?

Legal Aid NSW may represent you in some circumstances, but it depends on what offence you have been charged with, your criminal history, your income and assets and whether you are facing a gaol sentence. 

Usually, there will also be a Legal Aid Duty Lawyer at court on the day. However, this lawyer is often very busy, so it is best to get legal advice before you go to court.

For more information, see Help at court on the Ways to get help section of our website. 

What are the penaltie​s for drink driving?

You can find a table of penalties you may face if you have been charged with a drink driving offence on the Drink driving charges and you brochure on the Legal Aid NSW website. 

The penalties for second or subsequent offences are higher than for first offences. The Court may also make an alcohol interlock order or an interlock exemption order. 

If you have been charged with drink driving, you should get legal advice about your case and the penalties you may face, especially if this is not your first offence. 

What are the penalties for drug driving?

You can find a table of penalties you may face if you have been charged with a drug related driving offence on the Drugs, driving and you factsheet in the Ways to get help section of our website. 

The penalties for second or subsequent offences are higher than for first offences.

If you have been charged with a drug related driving offence, you should get legal advice about your case and the penalties you may face, especially if this is not your first offence. 

What are the penalties for low range drink driving (first offence) and driving with an illicit substance present in oral fluid/blood/urine (first offence)?

The maximum penalty that a Court can impose for a first offence of low range drink driving or driving with an illicit substance present in your system is a fine. If you receive a fine, a conviction is automatically recorded, and a disqualification period must be imposed. 

Other Orders the Court could make include:

• dismiss the matter (no fine, conviction, disqualification or other penalty)
• a Conditional Release Order (CRO) without conviction (no fine and no disqualification)
• a conviction only (and disqualification period)
• a Conditional Release Order (CRO) with a conviction (with no fine, but a disqualification period must be imposed).

What penalty am I likely ​to get?

The penalty you will be given will depend on a number of things, including:

• the type of offence and any aggravating factors, for example, children being in the car at the time of the offence
  
• whether you have been convicted of this type of offence in the past
  
• your driving history
  
• your personal circumstances, for example, your work or family circumstances
• why you need your licence.
  

If you want advice about what the likely penalty will be in your circumstances, you should get legal advice. 

Will I be disqualified from dr​iving?

For all drink driving, drug related driving, or driving under the influence offences, you will get a disqualification period if you are convicted of the offence. An exception to this is if you get a section 10.

If you are convicted of repeat or serious drink driving offences the Court may make an alcohol interlock order, but you can apply for an exemption to the interlock order. 

To find out what penalties you may face, you should get legal advice. 

Will I go​ to gaol?

Different penalties apply for each type of drink driving or drug related driving offence. Mid range, high range and driving under the influence of drugs or alcohol carry a sentence of imprisonment. A prison sentence is always a last resort.

If you are unsure of the penalty you might receive for your offence, you should get legal advice.

For more information, see:

• Drink driving charges and you in the Ways to get help section of our website, and
  
• Drugs, driving and you in the Ways to get help section of our website. 

Can I get a work l​icence if I am disqualified?

Transport for NSW (formerly known as Roads and Maritime Services) does not provide a work or restricted licence.

If you are disqualified from driving, you will not be able to drive under any circumstances. If you are convicted of driving whilst disqualified, you will face serious penalties, including a possible gaol sentence.

If you need your licence for work, you may be able to:

• apply to have your disqualification period removed
• apply for an annulment of your conviction or sentence if you missed court
• appeal your conviction or sentence within 28 days
• apply to the Attorney General to have your disqualification remitted
• apply to have your Habitual Traffic Offender Declaration quashed. 

Before you apply, you should get legal advice.

For more information, see the Licence suspensions and disqualifications topic.

Will a conviction be on my criminal record?

A conviction for a serious traffic offence, such as drink driving, drug related driving or driving under the influence, will be on your criminal record and it will appear in a criminal record check.​

Do I have to pay ​​court costs?

If you are found guilty or plead guilty, you will have to pay court costs unless you:

• get a section 10 for a matter in the NSW Drug Court
  
• get a section 10 dismissal for an offence that does not have a gaol sentence
  
• are convicted in the NSW Children's Court
  
• receive a gaol sentence.
  

If you are under 18, the Court may direct that you don't have to pay the Court Cost Levy. 

Court costs are separate to any fine you receive, and the Victims Support Levy. If you have multiple charges, you will have to pay court costs for each offence.

For more information, see Paying fines and judgement amounts on the Local Court of NSW website. 

What is t​he Alcohol Interlock Program?

The Alcohol Interlock Program (previously known as the Mandatory Interlock Program) is a court-ordered requirement for certain types of drink-driving offenders. 

It has been in place since February 2015 for all high range and repeat offenders. From Monday 3 December 2018, the Alcohol Interlock Program was extended to apply to all first time, mid-range drink driving offenders (a blood alcohol concentration of 0.08 or more, but less than 0.15). It also applies to first time offenders convicted of driving a motor vehicle under the influence of alcohol.

If an offender is convicted of one of these offences, the Court is required to make an interlock order, which outlines how long the offender is disqualified and how long they must participate in the program. After a period of disqualification, you may apply for an interlock driver licence that allows you to drive a vehicle that has an approved interlock device installed. You must apply for an interlock driver licence otherwise you will be disqualified from driving for five years commencing on the date you were convicted.

You must arrange for an approved provider to install and maintain the interlock device. You must also pay for the cost of purchasing, installing, servicing, maintaining and removing the device.

The interlock also includes a camera and takes a photograph of the person providing the breath sample to reduce the risk of a driver circumventing the program.

Data from the device, including any attempts to drink drive and photographs, are monitored by Transport for NSW (formerly known as Roads and Maritime Services).

What is an Interlock Exempti​on Order?

An Interlock Exemption Orde​r is when the Court does not require you to participate in the​​ alcohol interlock program after you have completed the disqualification period for an interlock offence.

If you were convicted of a first offence of drive with mid range prescribed concentration of alcohol (PCA), you may be able to get an interlock exemption order if you prove that: 

• the making of an interlock order would cause severe hardship to you, and
  
• an interlock exemption order is more appropriate in all the circumstances than an interlock order. 
  

For all other drink driving offences, an exemption order may only be made if: 

• you do not have access to a vehicle that an interlock device can be installed in, or
  
• you have a medical condition (and evidence) that stops you from being able to provide the interlock device with enough breath to operate.
  

Except in the case of a first offence of driving with a mid range PCA, an Interlock Exemption Ord​​er cannot be made just because:

• you are unable to afford the costs of the interlock device
  
• you risk losing your employment if you are unable to hold an unconditional licence, or
  
• the registered owner of the vehicle you will be driving refuses to allow an interlock device to be installed.
  

An Interlock Exemption Order can only be made at the time of sentence.

For more information, see Alcohol Interlock Program on the Transport for NSW website. 

If an alcohol interlock orde​r is made against me, can I apply for an interlock licence straight away?

If the Court makes an alcohol interlock order, it must also disqualify you from driving for a period of time. The length of time you are disqualified will depend on the offence you are convicted of as well as your history and other factors.

You must not drive at all during your disqualification period. Driving whilst disqu​​alified is an offence. If you are convicted of driving whilst disqualified, you will face serious penalties, including a possible gaol sentence.

For more information, see Alcohol Interlock Program on the NSW Government website. 

How d​o I get an interlock l​icence?

You must apply to Transport for NSW (TfNSW)(formerly known as Roads and Maritime Services) for an interlock licence. You will need to provide TfNSW with a copy of a Drink-Less medical certificate signed by an approved medical practitioner as well as a number of other documents. 

For more information, see Alcohol Interlock Program on the NSW Government website. 

What is the interloc​k period?

The interlock period is the period during which you can only drive if you have an interlock licence and you are driving a vehicle with an approved interlock device. It is an offence to drive a vehicle without the device or if the device is faulty. 

An interlock period will start after a disqualification period. You can't drive at all during the disqualification period.

Can I apply to be exempt from the interlock program?

The Local Court can only make an order to exempt you from the interlock program at the time your case was in court. If the Court has already dealt with your case and you have been ordered to participate in the program, you can't ask the Court to exempt you.

If you have been ordered to participate in the interlock program and you fail to do so, you will stay disqualified from driving for five years from the date of conviction.

Can I be exempt from using an alcohol interlock device in a work vehicle?

If you need to drive a work vehicle and are charged with an offence that will carry a mandatory interlock order, you must either:

• make an application to be exempt from the mandatory interlock program
• only drive vehicles fitted with an interlock device if the Court orders you to participate in the interlock program.

You can ask your employer to fit a device into a work vehicle but they may not do so. If you drive any vehicle that is not fitted with an interlock device while you are on an interlock licence, you may be charged with an offence. 

If you are on an interlock licence there is no application you can make to be allowed to drive a work vehicle that is not fitted with an interlock device.

Do I have to go on the interlock program i​f I can't afford the costs?

The Court can't exclude you from the alcohol interlock program on the basis you are unable to afford the costs of the interlock program (unless you were convicted of a first offence drive with mid range prescribed concentration of alcohol). You may be eligible for a concession (reduction) if you hold any of the following cards:

• health care card
  
• pensioner concession card
  
• commonwealth senior's health card.
  

You should speak to Transport for NSW (TfNSW) (formerly known as Roads and Maritime Services) about their Financial Assistance Scheme to see if you are eligible for assistance.

For more information, see Alcohol Interlock Program on the NSW Government website. 

What if I do not want to ​partic​​​​​​ipate in the interlock program?

If the Court made an Alcohol Interlock Order and you don't participate in the interlock program or obtain an interlock licence, you will stay disqualified from driving for five years from the date of conviction.

The Court can't reduce this disqualification period and the disqualification period is the same for all mandatory interlock offences.

I've completed the interlock period,​ can I apply for an unconditional licence?

When your interlock period has finished, you will be able to apply to Transport for NSW (TfNSW) (formerly known as Roads and Maritime Services) for a licence without the interlock condition. Upon application, TfNSW may:

• grant you an unrestricted or provisional driver licence, or
  
• extend your interlock period and require you to complete an alcohol related Fitness to Drive medical assessment.
  

TfNSW will use the data collected from your interlock device to determine if the interlock period will be extended or whether you will be given a licence without the interlock condition.

Should I enrol in a traffic offend​er intervention program?

If you have been charged with a serious traffic offence it may be a good idea to enrol in a traffic offender intervention program.

If you register with a traffic offender program before your court date, you can let the Magistrate know about your enrolment at the mention (the first day in court). If you can't complete the course before your court date, the Magistrate will usually adjourn (postpone) your matter to give you a chance to complete the program. After you complete the course, you will be given a certificate of completion, which you can provide to the court.

In some cases, you may be ordered to complete a traffic offender intervention program before you are sentenced.

If you have been charged with a serious traffic offence, you should get legal advice.

How do I find a traffic off​ender intervention program?

There are a number of registered providers who run the program. 

For more information, see Traffic offender intervention program on the Local Court of NSW website.

How is the program delivered?

Different providers deliver the program in different ways.

The program can be delivered:

• online
• in person, in a classroom
• full-time, over the course of a couple of days
• part-time, over several weeks.

Before you enrol in a program, you should check how it will be delivered.

Can I complete the traffic offender intervention program as part of a Work and Development Order?

If you have an overdue fine, you may be able to complete the traffic offender intervention program to pay off your fine. 

The traffic offender intervention program can be an approved activity for a Work and Development Order (WDO) if you voluntarily start the program before you are sentenced for the traffic offence.

If you are ordered by the Court to complete the traffic offender intervention program it won’t count towards a WDO.

If you have an unrestricted licence, and your licence has been suspended twice in five years for having too many demerit points, Transport NSW can require you to complete the program before you can get your licence back. If you complete the program at the request of Transport for NSW, you can ask for it to be an approved activity under a WDO.