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If you’re awaiting lab results following a positive MDT, or have been charged with driving with drug driving then you’re bound to have a lot of questions. Read on for an overview of the offence or feel free to contact us if you’d rather talk to a dedicated traffic lawyer for personalised advice.

What is Drive with Prescribed Illicit Drug Present?

The offence of operating a vehicle with one or more of THC, methylamphetamine, ecstacy and cocaine detectable in your oral fluid, blood or urine.

What is the process?

The police conduct three tests of your saliva:

  1. The first is the tongue swab roadside;
  2. Then a saliva sample is taken and tested at the booze bus or the police station; and
  3. That sample is also sent off to a laboratory to be thoroughly tested.

If you have a positive result for either of the first two tests then the police will likely suspend you from driving for 48 hours and tell you that if the lab results also come back positive then you will receive either an Infringement Notice or a Court Attendance Notice (CAN) in the post.

How long will it take to get the lab analysis results?

The wait for the lab results is about 6 weeks.

Drug driving Infringement Notice

The Infringement Notice gives you a set fine amount that you can pay to finalise your matter. If you pay the fine the following will happen:

  • the offence will be put on your traffic record (but it is not counted as a criminal record)
  • the RMS will send you a letter suspending your licence for 3 months

What if I’m not guilty?

There are a number of defences that might be relevant to your situation.

If you are not guilty, then you can elect to fight the case in court instead of paying the Infringement Notice.

There are risks to court electing (criminal conviction and harsher penalty). We recommend that you get good legal advice before doing so.

Please contact us to discuss how these might apply to you.

Court Attendance Notice

If you have a CAN for an offence of drug driving then instead of simply paying a fine, you will have to go to court on the date listed on your Notice.

What happens if I plead guilty to drug driving?

The Court will decide what (if any) penalty to impose.

Don’t worry that if you plead guilty the magistrate won’t hear your side of the story.

During the sentencing proceedings the magistrate will give your lawyer the chance to explain what happened, what type of person you are and the impact that the case and any penalty will have on you. The magistrate will consider all of those things when deciding what penalty to impose.

With the right preparation you can reduce the penalties that the magistrate would otherwise impose.

Read on for more about what to expect at your sentence hearing.

What are the possible penalties?

Drive with Prescribed Illicit Drug Present – First offence

Section 10 dismissal

  • without conviction,
  • without a fine, and
  • without a disqualification period.


  • with a fine of up to $2,200, and
  • with an automatic disqualification period of 6 months that can be reduced to 3 months.

Drive with Prescribed Illicit Drug Present  – Second or subsequent offence in 5 years

Section 10 dismissal

  • without conviction,
  • without a fine, and
  • without a disqualification period.


  • with a fine of up to $3,300,
  • with a disqualification period of 12 months that can be reduced to 6 months.

In deciding a penalty, the magistrate will weigh up the unique factors in each case. They will consider when the driver last consumed the drug, their manner of driving, their need for a licence and what they are doing to ensure that they don’t reoffend.

In some cases, the magistrate will agree not to record a conviction or impose any punishment. This is known as a section 10, or conditional release order without conviction.

Where the magistrate decides to convict a person, the usual penalty is a fine and licence disqualification.

Can I get a section 10?

Drug driving matters are regularly dismissed under section 10.

A section 10 is an order where the magistrate finds you guilty of the offence, but releases you without a criminal conviction or further punishment. Any operating police licence suspension is also lifted.

If the magistrate dismisses your matter under section 10 you may be required to enter into a conditional release order. This is a good behaviour bond, or promise to the Court, that you will not commit any other offences for a period of time.

For a personalised assessment of your chances of receiving a section 10 contact us.

Will I get a criminal record for driving with prescribed illicit drugs present?

If the Court convicts you for drug driving then you will get a criminal conviction and criminal record.

There are two ways to avoid this:

  • Be found not guilty.
  • Be found guilty, but without a conviction being recorded (section 10).

You will not get a criminal record if you pay an Infringement Notice for Drive with Prescribed Illicit Substance Present.

What happens on my first court date?

Often there is not much time between now and your first court date. There is no need to be concerned about this, as the Court will normally allow you more time to prepare.

On the first court date, the magistrate will ask what you are planning to do with your case. You can do one of three things:

  • Enter a plea of ‘guilty’ and either ask that the magistrate give you a penalty that day or ask for more time to prepare.
  • Enter a plea of ‘not guilty’ and your matter will be adjourned to a later date for hearing.
  • Ask for an adjournment to get some legal advice.
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