Getting arrested for drug possession can feel overwhelming fast-paced questions, flashing lights, and more stress than sense. But here’s the thing: knowing your rights can be the difference between a bad situation and a disastrous one.
Whether you’re stopped on the street, searched at a music festival, or caught up in a night gone sideways, here’s what you need to know about minor drug possession charges in NSW, and how to protect yourself during the arrest process.
What Counts as Minor Drug Possession?
In NSW, being found with a small quantity of illicit substances such as cannabis, MDMA, cocaine or amphetamines typically falls under “possession” rather than trafficking or supply but that doesn’t mean the consequences are light.
Under Section 10 of the Drug Misuse and Trafficking Act 1985, possession of a prohibited drug is a criminal offence, punishable by up to 2 years imprisonment and/or a $2,200 fine. That said, first-time offenders may be eligible for a caution, diversion program, or conditional release, depending on the circumstances.
More serious consequences can arise if the police allege intent to supply especially if they find multiple bags, cash, or other so-called “indicators.”
Your Rights During a Drug Possession Arrest
1. You have the right to remain silent
Yes, just like in the movies but even more important in real life. You’re not required to answer police questions beyond providing your name and address. Anything else you say can (and often will) be used as evidence, so keep it short and polite.
2. You don’t have to consent to a search unless they have a legal reason
Police can search you without a warrant if they have “reasonable suspicion” that you’re carrying drugs. You can voice that you do not consent, but don’t physically resist that can lead to additional charges.
3. You can ask why you’re being arrested
You’re entitled to know the exact reason for your arrest. Police must explain it clearly and in plain language.
4. You can call a lawyer and you should
Once arrested, you have the right to contact a lawyer. Don’t wait until you’re in front of a magistrate. Having legal advice from the start can make a huge difference to the outcome of your case.
Can You Be Cautioned Instead of Charged?
Yes, NSW police can issue a formal caution for cannabis possession under the Cannabis Cautioning Scheme, provided it’s a small amount (under 15g), the person has no prior record, and agrees to the caution. For other drugs, while there’s no formal cautioning scheme, police and courts often take a “harm minimisation” approach for first-time and low-level offences.
You may also be referred to a drug diversion program, which can result in no criminal conviction if successfully completed.
What NOT to Do During an Arrest
- Don’t lie about your name or details. This can be a separate offence.
- Don’t resist or run even if you’re scared, this can escalate the situation fast.
- Don’t explain or excuse yourself without a lawyer present. what you say might not help your case.
Final Thoughts
A drug possession arrest isn’t the end of the road—but what happens in those first few moments matters. Knowing your rights, staying calm, and seeking immediate legal advice can drastically shape the outcome.
At Green & Associates Solicitors, we’ve represented countless clients in drug-related matters, from minor possession to more serious charges. If you’ve been arrested or charged or just want to know where you stand get in touch with our criminal law team. We’re here to protect your rights and get the best possible outcome for your case.
