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Charged with Drug Use? What You Need to Know
Being charged with drug use in NSW is more serious than most people expect. Self-administration of a prohibited drug is a criminal offence under section 12 of the Drug Misuse and Trafficking Act 1985 (NSW), carrying a maximum penalty of 2 years imprisonment and a fine of $2,200.
Many people assume that only possessing or supplying drugs is illegal, and that using a drug once it is already in their system cannot be prosecuted. This is incorrect. The law criminalises the act of administering a drug to yourself, separately from possessing it, and police do not need to find the drug on you to lay the charge.
Drug use charges can involve substances ranging from commonly used recreational drugs such as marijuana and cocaine to stronger illicit substances including opioids and other stimulants. While the reasons people use these substances vary, the legal consequences can affect employment, family relationships, travel, and future opportunities.
Outcomes for drug use charges vary widely, particularly for first-time offenders. The Australian Legal Practice represents clients facing drug use charges across Burwood, Sydney CBD, and Parramatta. Our lawyers are available 24/7, the first consultation is free, and early advice often makes the difference between a recorded conviction and a non-conviction outcome.
Drug-related offending can sometimes be connected with underlying issues such as addiction, mental health challenges, alcohol abuse, or substance use disorders. Where appropriate, our lawyers can advise clients about available treatment options and support services that may assist with achieving a better legal outcome.
Call (02) 8084 9929 to arrange a free consultation with a principal lawyer.
What Is Drug Use?
Drug use, formally known as self-administration of a prohibited drug, is the act of introducing a prohibited drug into your own body. It is a separate offence from possessing or supplying a prohibited drug.
The Act defines “administer” to include:
- Ingesting, injecting, or inhaling a prohibited drug
- Smoking a prohibited drug
- Inhaling fumes from heating or burning a prohibited drug
- Any other method of introducing a prohibited drug into any part of the body
A “prohibited drug” is any substance, other than a prohibited plant, listed in Schedule 1 of the Act. Cannabis leaf, cannabis oil, and cannabis resin are prohibited plants or their derivatives and fall within related provisions.
Prohibited substances may include drugs such as marijuana, cocaine, heroin, methamphetamine, opioids, and other illegal or illicit substances. Some substances are also connected with prescription medication misuse, including prescription opioids that are legally supplied for medical purposes but may become unlawful when used outside their prescribed purpose.
Conduct that can result in a drug use charge includes:
- Injecting heroin or another prohibited drug into a vein
- Swallowing a pill containing MDMA or another prohibited substance
- Smoking cannabis, ice, or another prohibited drug through a bong, pipe, or joint
- Snorting cocaine or another prohibited drug
The effects of drug use vary depending on the substance, the person’s age, health, frequency of use, and whether there is an underlying substance use disorder. Some users may develop dependence or addiction, requiring professional health treatment and support services.
Drug use is distinct from two related offences:
- Drug possession (section 10): criminalises custody or control of a prohibited drug, rather than administering it
- Drug supply (section 25): involves providing a prohibited drug to another person
A single set of facts can sometimes give rise to more than one charge, for example where a person is found in possession of a small amount of a drug shortly after using it.
Police and courts recognise that drug-related matters can involve complex personal circumstances. Factors such as mental health disorders, alcohol use, family circumstances, and previous attempts at treatment may become relevant when determining the appropriate legal response.
Drug Use Under Australian Law
Self-administration of a prohibited drug is created by section 12 of the Drug Misuse and Trafficking Act 1985 (NSW):
“A person who administers or attempts to administer a prohibited drug to himself or herself is guilty of an offence.”
Key provisions:
- Section 12(1): Creates the offence of self-administration
- Section 12(2): Exception, not unlawful where the drug was lawfully prescribed for you or lawfully supplied to you
- Section 21: Maximum penalty of 2 years imprisonment or 20 penalty units ($2,200), or both
The law applies regardless of whether the substance was taken for medical, recreational, or other reasons. However, where prescription medication is involved, the circumstances surrounding how the substance was obtained and used can be important.
Self-administration falls under Part 2, Division 1 of the Act, alongside several related offences:
Offence | Section |
Possession of a prohibited drug | s 10 |
Possession of equipment for administration of prohibited drugs | s 11 |
Self-administration of prohibited drugs | s 12 |
Administration of prohibited drugs to another person | s 13 |
Permitting another person to administer a prohibited drug | s 14 |
Offences under Part 2, Division 1 are summary offences:
- Dealt with only in the Local Court
- No right for either the prosecution or the accused to elect a District Court hearing
- Maximum penalty a Local Court judge can impose is the 2 years and $2,200 fine set out in section 21
Although drug use offences are dealt with in the Local Court, the consequences can still be significant. A conviction may affect employment opportunities, travel, professional licences, and a person’s reputation within their community.
What Must the Prosecution Prove?
To secure a conviction for drug use, the prosecution must prove each of the following elements beyond reasonable doubt:
- You administered, or attempted to administer, a substance to yourself
- The substance was a prohibited drug as defined in Schedule 1 of the Act
- The administration was not covered by the section 12(2) exception for a lawfully prescribed or lawfully supplied drug
If the prosecution cannot prove any one of these elements, the court must find you not guilty.
Because the drug has usually already been consumed by the time police become involved, the prosecution case often relies on:
- An admission made by the accused
- Direct police observation of the act of administration
- Circumstantial evidence such as drug paraphernalia and physical symptoms
Where none of these are available, the prosecution case may be difficult to sustain.
Evidence in these matters can sometimes involve issues relating to the reliability of observations, statements, testing procedures, and assumptions about drug use. For example, physical symptoms alone may not always establish that a person consumed an illegal substance.
Where drug use is connected with addiction, mental health disorders, or substance dependence, obtaining appropriate treatment and health support can also be relevant when preparing a defence strategy and presenting personal circumstances to the court.
Penalties for Drug Use in NSW
Because self-administration is a summary offence heard exclusively in the Local Court, sentencing outcomes range from no conviction at all through to a short term of imprisonment.
Sentencing options available to a Local Court Judge:
- Section 10(1)(a) dismissal (no conviction recorded)
- Conditional Release Order (CRO) without conviction
- Conditional Release Order (CRO) with conviction
- Section 10A conviction with no further penalty
- Fine, up to the maximum of $2,200
- Community Correction Order (CCO)
- Intensive Correction Order (ICO), served in the community
- Full-time imprisonment, up to the maximum of 2 years
Factors that influence the severity of the penalty:
- Age and criminal history
- Whether this is your first drug-related charge
- Type of drug involved
- Evidence of dependency or an underlying substance use problem
- Genuine remorse
- Steps already taken toward treatment or rehabilitation
The court may also consider whether a person has taken steps to address underlying issues such as addiction, mental health disorders, alcohol abuse, or substance dependency. Evidence of participation in treatment programs, counselling, or health services may assist in demonstrating rehabilitation and reducing the risk of future offending.
Drug-related problems affect people across different ages and backgrounds. Data from health organisations shows that substance misuse can contribute to serious health effects, including increased risks associated with overdose, drug-related disease, and preventable deaths.
However, a drug use charge is a legal matter, and each case must be assessed based on its own facts and circumstances.
Early Drug Diversion Initiative (EDDI)
- Applies to self-administration, possession, and possession of equipment offences
- Police can issue a $400 Criminal Infringement Notice instead of a charge
- The fine can be waived by completing a telehealth drug health intervention
- Available up to twice before a further offence must proceed to court
- Discretionary, police retain full discretion to charge instead
- Does not apply where there is any indication of supply, or where the person has a prior conviction for a serious drug offence such as supply, manufacture, or importation
The purpose of diversion programs is to recognise that some people charged with minor drug offences may benefit more from health-based intervention than traditional penalties. This can include referral to treatment services addressing addiction, opioid use, alcohol-related issues, or other substance use disorders.
EDDI may be particularly relevant where the alleged drug use involved commonly used substances such as marijuana, cocaine, or other illicit drugs and there is no evidence of supply or ongoing criminal activity.
MERIT Program
- Available once a matter is before the Local Court
- For eligible defendants with a demonstrable drug or alcohol problem
- Voluntary and does not require a guilty plea
- Supervised 12-week treatment program while the court matter is adjourned
- Successful completion is taken into account at sentencing and can support a non-conviction outcome
MERIT recognises that drug and alcohol problems can often involve broader health and social factors. Participants may receive assistance for substance use disorders, including issues involving opioids, prescription drug misuse, stimulants, or other illicit substances.
The program may also consider related issues such as mental health conditions, family circumstances, and the effects that addiction can have on employment, relationships, and daily life.
Possible Defences Against Drug Use
Several defences and exceptions can result in a drug use charge being dismissed or withdrawn.
- Lawful prescription or supply: Under section 12(2), the offence is not made out where the drug administered had been lawfully prescribed for you or lawfully supplied to you
- Mistaken identity: You were not the person police observed administering a substance, or the identification evidence is unreliable
- Duress: You were forced to act by threats of serious harm from another person
- Necessity: The conduct was necessary to avoid an imminent and greater harm
Every defence is assessed on the specific facts of the matter, including the quality of the police evidence, whether any admission was properly obtained, and whether the substance was ever confirmed as a prohibited drug.
Where prescription medication is involved, it is important to examine whether the substance was legally obtained and whether it was used according to medical instructions. Prescription opioids and other controlled medicines may be lawful when used correctly but may create legal issues when supplied or used unlawfully.
A person’s background, including age, health history, family responsibilities, employment circumstances, and any steps taken toward treatment, may also be relevant when seeking the most favourable outcome available.
Your Options When Charged with Drug Use
Option | What It Means |
Negotiate before the matter proceeds | Where police evidence is weak, or where you were eligible for EDDI diversion but were charged instead, early representations can result in withdrawal or amendment |
Plead not guilty | Contest the charge at a defended hearing, where identification is uncertain, no admission was made, or the substance was never confirmed as a prohibited drug |
Plead guilty and seek the best outcome | An early guilty plea attracts a sentencing discount; MERIT referral, character references, and treatment evidence can support a section 10 dismissal or CRO without conviction |
Choosing the right approach depends on the evidence, the circumstances surrounding the alleged drug use, and whether there are issues such as addiction, mental health disorders, or substance dependence. A lawyer can help determine whether challenging the charge or focusing on rehabilitation is the most appropriate strategy.
Why Choose The Australian Legal Practice for Drug Use Charges
- Principal-level representation. You deal directly with an experienced senior lawyer, not a junior
- 24/7 availability on (02) 8084 9929. Drug use charges often follow an arrest or search that happens without warning, at any hour
- Three Sydney offices: Burwood, Sydney CBD, and Parramatta
- Free initial consultation so you can assess your options before your first court date
- Fixed-fee arrangements available for standard drug use matters
- Experience navigating both the Early Drug Diversion Initiative and the MERIT program, and identifying when a client has been charged despite being eligible for diversion
- Integrated advice where a drug use charge is accompanied by a related possession, driving, or traffic matter
Our lawyers at The Australian Legal Practice understand that every client’s circumstances are different. Some people may be dealing with addiction, alcohol abuse, mental health challenges, or the effects of long-term substance use. We provide advice focused on achieving the best possible legal outcome while considering practical steps such as treatment and support services.
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Frequently Asked Questions About Drug Use
Drug use, or self-administration, is the act of introducing a prohibited drug into your own body under section 12 of the Drug Misuse and Trafficking Act 1985 (NSW). Drug possession under section 10 is a separate offence involving custody or control of a prohibited drug. The two offences have different elements, and a person can be charged with one, both, or neither depending on the facts.
The type of substance involved can vary widely, including marijuana, cocaine, opioids, stimulants, or other illicit drugs. Regardless of the substance, the legal issue is whether the prosecution can prove the elements of the offence beyond reasonable doubt.
In some cases, yes. Under the Early Drug Diversion Initiative, police can issue a $400 Criminal Infringement Notice for a self-administration offence instead of a court attendance notice. The fine can be waived by completing a telehealth health intervention. This is discretionary, and police may still choose to charge you.
Diversion programs aim to reduce the long-term effects of minor drug offences by connecting eligible people with health services and treatment options rather than immediately pursuing a criminal penalty.
A recorded conviction appears on a standard National Police Check and can affect employment in regulated industries and visa applications for overseas travel. Non-conviction outcomes such as a section 10 dismissal or a CRO without conviction do not result in a recorded conviction.
The impact can depend on factors including the nature of the offence, the person’s age at the time, the country involved, and the requirements of employers or immigration authorities.
Section 12(2) of the Act specifically states that it is not unlawful to administer a prohibited drug to yourself where that drug has been lawfully prescribed for you or lawfully supplied to you. If you have been charged in these circumstances, this is a significant issue for your defence.
Prescription medicines, including certain opioid medications, can play an important role in medical treatment when used correctly. However, misuse, supply to others, or use outside medical instructions can create legal consequences.
Speak to a criminal defence lawyer today on (02) 8084 9929 or book a free initial consultation.
