Drug Driving in Victoria

This article will explain to you the different drug driving offences, as well as key information on what to expect. We recommend that you contact Nardi Lawyers if you face any of the drug driving related offences detailed in this article.

You can click here to read about a case that we have handled at Nardi Lawyers.

Introduction

The following substances are tested for in a typical roadside oral fluid test:

• MDMA;
• Methamphetamine; and
• Cannabis

It is important to understand that the mere presence of an illicit substance in your system will result in a positive oral fluid test. The substance does not necessarily have to be active. It is very common for individuals to have consumed cannabis three days prior to being tested and furnishing a positive oral fluid sample.

Further to this, drivers must not operate a vehicle with certain prescription drugs in their system if it renders them incapable of having proper control of their vehicle.

Failing a saliva test may result in you receiving an infringement notice for a first offence or a summons to Court.

Drug Driving Offences

The following are all drug driving related offences in Victoria:

• Exceeding the Prescribed Concentration of Drugs in Oral Fluid or Blood;
• Driving Under the Influence of Drugs;
• Failure to stop at a testing station (e.g., booze bus); and
• Refusing an oral fluid test.

Exceeding the Prescribed Concentration of Drugs

Furnishing an oral fluid test or blood test sample which exceeds the Prescribed Concentration of Drugs will result in a drug driving charge.

Police officers can lawfully request for you to provide an oral fluid test sample within 3 hours of driving or being in charge of a motor vehicle.

If you exceed the prescribed concentration of drugs, you may be issued with an Infringement Notice. These are only issued for first offences. The police officers can choose to either issue you with an infringement notice or put your matter straight into court.

You may also be issued with an immediate suspension of your Licence (section 85 notice). If your Licence is suspended well in advance of your court hearing, any time off the road served waiting for your court hearing will count towards the minimum mandatory suspension period imposed by the court.

For a first offence, the driver’s licence will be disqualified for a period of 6 months. Any subsequent offences will carry a 12-month licence suspension. These are the minimum mandatory licence suspension periods. This means that if you plead guilty to the offence, the Magistrate has no choice but to suspend your licence for the minimum mandatory period, even if there were exceptional circumstances.

Driving Under the Influence of Drugs

It is an offence to operate a motor vehicle while under the influence of drugs. An individual is charged with this offence if they were unable to have complete control of their vehicle at the time of the incident, due to the influence of drugs.

This offence is different as the Prosecution must prove that the driver was not capable of driving safely at the time that the offence was committed.

This offence further differs from exceeding the prescribed concentration of drugs, as it is more than just the mere presence of drugs in the system.

Prescription drugs, such as Xanax, may be found in an individual’s blood after a car accident. It is possible to be charged with this offence when under the influence of prescription drugs.

For a first offence, the driver’s licence will be cancelled for 12 months. For subsequent offences, the driver’s licence will be cancelled for 24 months.

Failure to stop at a testing station and refusing a test

It is an offence under the Road Safety Act 1986 section 49(1)(ca) and (eb) to refuse an oral fluid test or failing to stop at a testing station, such as booze buses.

Refusing a roadside oral fluid test or refusing to accompany a police officer to a police station for an evidentiary breath test are both offences.

Being found guilty of these offences results in a 2-year licence minimum mandatory cancellation for a first offence and 4 years for a subsequent offence.

Losing your licence and getting it back

If you accept an infringement notice or plead guilty to drug driving, you will receive a cancellation of your driver’s licence.

Please note, in Victoria, there are no conditional licences. This means that if you plead guilty to drug driving and have received a licence suspension or cancellation, you cannot have special conditions which allow you to drive for specific purposes, such as driving to work or taking your children to school. This is a common misconception. Your licence must be totally suspended or cancelled for the minimum mandatory period for your specific offence.

Sentence

The most common sentences for individuals who pleaded guilty to being in charge of a motor vehicle while exceeding the prescribed concentration of drugs between 1 July 2018 to 30 June 2021 are:

• Fine – 52.1%
• Imprisonment – 24.2%
• Community Correction Order – 15.7%
• Adjourned Undertaking – 6.3%
• Other – 1.6%

The most common sentences for individuals who pleaded guilty to driving under the influence of drugs between 1 July 2018 to 30 June 2021 are:

• Fine – 34.2%
• Imprisonment – 32.4%
• Community Correction Order – 22.7%
• Adjourned Undertaking – 8.9%
• Other – 1.8%

See the following articles for further information

Sentences in the Magistrates Court of Victoria

Drug Offences