Introduction
Offences for drink driving or driving with illicit drugs in your system, have always and continue to exist as separate offences. Until recently, there had not been an offence that penalised a driver for having both alcohol and drugs in their system.
As at 27 June 2021 however, if you are caught with both alcohol and drugs in your system you will be charged under the new combined offence – Section 111A of the Road Transport Act.
For first time offenders, the new combined offence applies only to those found to have drugs in their system, along with a blood alcohol reading higher than 0.08 (i.e. above middle range). This means that if you are caught with drugs in your system and a blood alcohol level above 0.05 (the low range) but below 0.08, the combined offence does not apply, however you can still be charged separately.
The above exception is not available to those who have been convicted in the past 5 years for drink driving (at any blood alcohol range). That means where a person has had a previous conviction for drink driving (even without any drugs in their system), if they are caught again with both drugs and alcohol in their system, then the combined offence applies to them regardless of their blood alcohol level.
A table below summarises the penalties and varying circumstances of the s111A combined offence:
| Offence | Drugs in System | Blood Alcohol Reading | Legislation | Maximum Penalty |
| 1st time | Yes | 0.00 | Charged for drugs only – s111, Road Transport Act. | $2200 |
| 1st time | Yes | 0.05 – 0.79 [Low Range] | Drugs and alcohol charged separately – ss 110 & 111, Road Transport Act. | $4400 |
| 1st time | Yes | 0.08 – 0.149 [Middle Range] | Charged with combined offence – s111A(2), Road Transport Act | $3300 and/or 18 months imprisonment |
| 1st time | Yes | Greater than 0.15 [High Range] | Charged with the combination offence – s111A(1), Road Transport Act. | $5500 and/or 2 years imprisonment |
| 2nd time + | Yes | 0.05 – 0.79 [Low Range] | Charged with combined offence – s111A(3), Road Transport Act. | $5500 and/or 2 years imprisonment |
| 2nd time + | Yes | 0.08 – 0.149 [Middle Range] | Charged with combined offence – s11A(2), Road Transport Act. | $6600 and/or 2 years imprisonment |
| 2nd time + | Yes | 0.15 or greater [High Range] | Charged with combined offence – s111A(1), Road Transport Act. | $11,000 and/or 2 years imprisonment |
In addition to the penalties listed above, any person who is convicted under the combined offence may also be subject to a mandatory disqualification period and may have to participate in an alcohol interlock program.
Mandatory Disqualification Period
A mandatory disqualification period is the period for which a person convicted of certain traffic offences will be disqualified from holding a drivers licence. A person who has been convicted of a drink driving or drug driving offence within the last 5 years will be liable to a higher disqualification period.
For a person with no convictions in the last 5 years, a conviction of a combined offence with a blood alcohol level in the middle range, will occasion a 2‑year disqualification period, and 4 years for a high range blood alcohol level.
Mandatory Interlock Order
A mandatory interlock order imposed by the court involves 2 main components:
- A minimum disqualification period in which a person is prohibited from driving; and then
- A period of participation in the interlock program, where a person may drive under the conditions of an interlock device installed to the vehicle (an electronic breath testing device which requires the driver to provide a breath sample for the presence of alcohol before the vehicle will start).
For a combined offence, the disqualification period ranges from 1 month to 9 months, depending on the blood alcohol level and history. An interlock period may range 1 year to 4 years for the same reasons.
Police Procedures in Practice
The amendments do not introduce anything new to how drivers in NSW are tested for alcohol and drugs. A driver who is breath-tested and returns a middle or high range alcohol level, will then undergo a roadside drug test. A driver who tests for a low‑range result, is also asked to undergo a drug test if they have a previous offence.
You should also be aware that, depending on the blood alcohol level detected, police also carry the discretion to suspend a person’s drivers licence on the spot.
If you have been charged with a combined offence (or a separate alcohol or drug driving offence), and would like to obtain legal advice on your matter, please do not hesitate to contact our office for an initial obligation-free consultation.