Case Study · NSW Local Court · By Joshua Boorman · Published 4 April 2026

The Offence: Cocaine in System from 36 Hours Earlier

Josh Boorman from Borman Lawyers appeared at Burwood Local Court in Sydney’s inner west to represent a client charged with driving with an illicit drug — cocaine — present in his system.

The circumstances were notable. Our client had consumed cocaine approximately 36 hours before the offence — two nights prior. He was not impaired at the time of driving. He was unexpectedly called into work early on a Saturday morning and, while travelling, was pulled over for a random breath test. He returned a negative result to alcohol. However, a mobile drug test returned a positive result for cocaine. A further sample was taken, sent to the police lab, and also returned positive.

This is one of the most important things to understand about drug driving law in NSW: you do not need to be impaired to be charged. The offence is simply having a detectable prescribed illicit drug present in your oral fluid or blood — regardless of when you consumed it or whether it affected your driving at all.

Drug Driving NSW: How We Got Reduced Penalties at Burwood Local Court (Cocaine Case)

Watch: Burwood Drug Driving Case — Full Video

The Default Penalties: What the Court Starts With

For a first offence of driving with an illicit drug present in NSW, the automatic starting point — what is called the automatic disqualification period — is 6 months off the road, plus a fine of $2,200.

However, the magistrate has discretion to reduce that disqualification to the minimum period of 3 months, and can also reduce the fine. Our goal was to persuade the magistrate to exercise that discretion in our client’s favour — and to push for the best possible outcome beyond that.

The Best Possible Outcome: Conditional Release Order With No Conviction

In NSW, there is a particular outcome available called a Conditional Release Order (CRO) with no conviction recorded. If granted, this means no disqualification, no fine, and no conviction on the client’s record — typically replaced with a good behaviour bond.

The magistrate noted this is the outcome everyone appearing on drug driving charges wants — and rightly so. But as the court made clear, CROs without conviction are given out sparingly. They are reserved for cases where the circumstances are truly exceptional and the person’s broader record supports it.

Our submission was that the court could and should proceed on this basis. The offence itself was at the lowest possible end — the drug was consumed well before driving, the client was not impaired, and this was his first offence of this kind with no prior drink or drug driving history.

Why the No-Conviction Outcome Was Not Granted

Unfortunately, our client’s broader criminal record worked against him. While he had no prior drink or drug driving offences and no major traffic offences in the last five years, he did have approximately 12 entries on his criminal record over the preceding six years — with a notable cluster of around five entries in the most recent year alone, showing a progressively worsening pattern.

The magistrate could not look past that record when considering whether to grant a no-conviction outcome. Despite the strength of our submissions on the circumstances of the driving itself, the overall picture of the client’s conduct meant the magistrate felt a conviction was warranted.

Mitigation Strategy: What We Presented

Even where the best outcome is not achievable, proper mitigation can still make a significant difference to the penalty actually imposed. We presented the following to the court:

Traffic Offenders Program

Our client completed the Traffic Offenders Program before appearing at court. Completing this proactively — rather than waiting to be ordered — demonstrates genuine acknowledgment of the seriousness of the offence and is recognised by NSW courts as a meaningful step.

Character References

Our client disclosed the matter to his mother and his employer. Both provided letters of reference. These supported the picture of a person who had taken responsibility, been open about what happened, and was genuinely remorseful — not someone trying to minimise or conceal their conduct.

Letter of Apology

Our client prepared a personal letter of apology to the court. A genuine, well-crafted apology letter carries real weight — it gives the magistrate direct insight into the person’s mindset and level of remorse in a way that lawyer submissions alone cannot achieve.

Circumstances of the Offence

We emphasised the specific circumstances: the drug was consumed approximately 36 hours before driving, our client was not impaired, and he was called in to work unexpectedly. This was not a case of someone getting behind the wheel while affected — it was a residue detection case. That distinction matters to the court when assessing moral culpability.

The Result: Minimum Disqualification and Significantly Reduced Fine

While a conviction was recorded — which was not the outcome we ultimately sought — the magistrate exercised his discretion to reduce the disqualification from the automatic 6 months down to the minimum of 3 months, and reduced the fine from $2,200 down to $600. That is a significant reduction in both penalty components.

Our client was pragmatic. Going in, he understood that getting straight back on the road and avoiding any penalty at all was going to be difficult given his record. It was still worth fighting for — and the mitigation we presented made a real difference to the outcome he walked away with.

Key Takeaways: Drug Driving in NSW

This case highlights several important principles for anyone facing a drug driving charge in NSW:

1. Impairment is irrelevant to the charge. NSW drug driving is a presence offence, not an impairment offence. If cocaine — or any other prescribed illicit drug — is detected in your system, you can be convicted regardless of when you took it or how you were driving.
2. A CRO with no conviction is possible but not guaranteed. It is available in NSW for drug driving but reserved for the clearest cases. Your broader criminal and traffic record will be scrutinised — not just the offence itself.
3. The magistrate has real discretion on penalty. The automatic 6-month disqualification and $2,200 fine are starting points, not fixed outcomes. With proper mitigation, the court can reduce both to the minimum.
4. Proactive preparation matters. Completing the Traffic Offenders Program before court, obtaining strong references, and preparing a genuine apology letter all gave the magistrate tangible reasons to exercise discretion in our client’s favour.
5. Your criminal record matters beyond traffic history. Even with no prior drug or drink driving offences, a broader criminal record — particularly a recent and worsening one — will significantly affect the court’s willingness to grant the most favourable outcomes.

Frequently Asked Questions: Drug Driving in NSW

What is the penalty for drug driving in NSW?

For a first offence of driving with an illicit drug present in NSW, the automatic penalty is a 6-month licence disqualification and a fine of up to $2,200. The magistrate has discretion to reduce the disqualification to a minimum of 3 months and can also reduce the fine.

Can you be charged with drug driving if you weren’t impaired?

Yes. In NSW, drug driving is a strict liability offence based on the presence of a prescribed illicit drug in your system — not on impairment. You can be charged and convicted even if the drug was consumed days earlier and had no effect on your driving.

What is a Conditional Release Order (CRO) with no conviction for drug driving NSW?

A CRO with no conviction is the best possible outcome for a drug driving charge in NSW. If granted, no conviction is recorded, no disqualification is imposed, and the person is typically placed on a good behaviour bond. It is available but given out sparingly — the court will consider the full circumstances and your criminal and traffic history.

How long does cocaine stay in your system for a drug test?

Cocaine can remain detectable in oral fluid (saliva) for 24–72 hours after use depending on individual factors including the amount consumed, metabolism, and hydration. NSW roadside drug tests detect the presence of the drug — not impairment — so a positive result is possible even days after consumption.

What mitigation helps in a drug driving case in NSW?

Effective mitigation in a NSW drug driving matter typically includes: completing the Traffic Offenders Program before your court date, obtaining character references from employers or family members, preparing a genuine letter of apology, and presenting the specific circumstances of the offence — particularly if the drug was consumed well before driving and impairment was not a factor.