Drug Driving in Victoria
It is an offence to take drugs (including many legal drugs) and drive a motor vehicle in Victoria.
There are three offence types:
- driving or being in charge or a motor vehicle while under the influence of alcohol or any drug to such an extent as to be incapable of having proper control of the motor vehicle (s.49(1)(a) Road Safety Act 1986;
- driving or being in charge of a motor vehicle while impaired by any type of drug (s.49(1)(ba) Road Safety Act; and/or
- driving or being in charge of a motor vehicle when your saliva or blood exceeds the prescribed content of illicit drugs (being any trace at all) (s.49(1)(bb), 49(1)(h) & 49(1)(i) Road Safety Act;
Driving While Under the Influence of Illicit Drugs
Driving while under the influence of any drug to such an extent as to be incapable of having proper control of the motor vehicle (s.49(1)(a). This drug driving charge can be laid in addition to the other drug driving offences. And may be done so in circumstances where manner of driving was a factor in why a person was intercepted or brought to the attention of police. This offence, as it is for drink driving, carries a much higher penalty than the other charges and should be defended where possible. You should seek legal advice if you are facing a s.49(1)(a) charge. It is possible to avoid an even more significant disqualification period by having an experienced traffic lawyer facilitate pleading to one of the other drug driving charges.
Driving While Impaired
Driving while impaired by a drug s 49(1)(ba). This drug driving offence can be determined by a police officer on the roadside despite returning a negative breath test. If the officer believes the person to be impaired, and/or performing certain cohesion or coordination tasks in an assessment of drug impairment, they have the power to request a blood or urine sample.
If this returns a positive reading for a “drug” which may in certain circumstances include prescription drugs, to the extent that the officer believes it is “impairing” the individual, you may be charged with this offence under s 49(1)(ba).
Drive While Exceed Prescribed Content of Illicit Drugs
Driving with Illicit Drugs in the Saliva or Blood s 49(1)(bb), (1)(h) & (1)(i). The types of drugs that are currently prescribed as illicit under this section are methylamphetamine (meth, ampetamines, or ice) and delta-9-tetrahydrocannabinol (cannabis).
Any trace of these drugs in a person’s system constitutes an offence against this provision.
The saliva test can be performed at random drug testing stations. Just as booze buses currently conduct preliminary breath tests. Th exception is that a saliva swab is taken and analysed on the spot rather than a sample of breath. A blood analysis can be performed on any blood sample that the person is obliged to give under any provisions of the Act.
Note it is also within police power to request a swab or blood sample at a hospital, following a motor vehicle accident.
Drug Driving Penalties
Find out more about each drug driving penalty here:
First offence: 6 months minimum licence cancellation and disqualification.
Subsequent Offence: 12 months minimum licence cancellation. Note that it is considered a “subsequent offence” even if your prior offence is not for drug driving.
If you have been previously found guilty of a drug driving offence in Victoria, the Magistrate has the power to sentence you to a term of imprisonment. An experienced drug driving lawyer can have a high chance of successfully saving you from receiving a jail sentence.
Refusing to provide a sample: At least 2 years minimum licence cancellation.
Can I defend the charge?
Drug driving in Victoria can be difficult to defend but not impossible. Certain available defence (including new and novel defence) include Duress, Necessity, Emergency, Factual Dispute regarding the alleged result, or most notably procedural disputes and technical errors. Both with the procedure at the time and afterwards with the documentation compliance.
In certain circumstances there may be a defence if you are prescribed certain medications which may have an interaction or interference with the substances that show up on the devices, or if you have an exemption. Additionally, you may also have a defence if you believe the test should not have been positive. Or if you have any grounds to believe that the first test should or could have been negative.
Due to certain procedural issues within the police at this time, we strongly recommend you to get in touch with our team if you have any doubt whatsoever regarding the result obtained on a Preliminary Oral Fluid Test (POFT) or secondary Oral Fluid Sample. Note that even if the secondary test was positive, it is still possible that the preliminary test could have been negative and in certain circumstances we may be able to run a defence.
It is very important that you seek legal advice regarding your charges. If you have any questions or concerns about whether you might have a defence to your charge of drug driving in Victoria.