Driving whilst Impaired by Drugs – ‘Drug Driving’
Known as ‘Drug Driving’, there are several categories of offences in Victoria relating to drugs and operation of a motor vehicle. It is considered to be an offence to:
- Drive a motor vehicle whilst under the influence of an illicit drug.
- Drive a motor vehicle whilst impaired by drugs to the extent that you are incapable of having proper control of the vehicle.
- Refuse to undergo a drug impairment (oral saliva) test.
Types of ‘illicit ‘drugs detected include Cannabis and Methamphetamine and ecstasy. You may also be charged with Drug Driving if you have taken prescription medication, that has not been prescribed by a doctor, and which also impairs your ability to have proper control of a motor vehicle.
If the Police believe that you are under the influence of an illicit drug, they are able to request that you provide a sample of your saliva for the purposes of an oral drug test. It is an offence to refuse an oral fluid assessment of drug impairment.  The Police can require you to undergo a preliminary oral fluid (saliva test) if they reasonably suspect that you have driven a vehicle under the influence of Drugs in the preceding 3 hours.
If the oral fluid test returns a positive reading suggesting the presence of an illicit drug in your system, a secondary test (oral or blood test) must be conducted to confirm the result. If the result is positive, you must receive a sample and can request the sample be analysed again in the presence of a medical practitioner. The detection of any level of drugs whilst operating a motor vehicle may lead to a charge of Drug Driving.
Importantly, as of the 31st January 2018, if you are caught Drug Driving interstate, you will be subject to the Victorian penalties, as outlined below.
There are various penalties that may be imposed by the Court if you are found guilty of a Drug Driving charge. Refer to the below table for specific information:
|Frequency||Maximum Penalty – Fail Roadside Oral Saliva Test or Refuse an assessment of drug impairment||Maximum Penalty – Drive whilst impaired by an illicit drug|
Note: the above penalties indicate maximum penalties and relate to drug driving offences alleged to have been committed after 30 April 2018.
Defences Available for Drug Driving
If you did not, in fact, take any illegal drugs, you will have a defence to your Drug Driving charge. Some prescription medications may cause salvia samples to return a positive reading. If you can evidence a prescription for a legal pharmaceutical medication and took the prescription medication in accordance with medical advice you will have a defence to your Drug Driving charge.
There are also strict procedures which must be followed if you test positive for an illicit drug via an oral fluid test. If these procedures are not followed, the specific test will become inadmissible as evidence of the charge. If you have tested positive via salvia sample you can also request that the sample be retested by a medical practitioner.
Further, if more than 3 hours have passed since you operated a motor vehicle, you cannot be required to provide an oral fluid sample. In this situation, you can legally refuse to provide an oral fluid sample.
All people caught drug driving are now required to complete a Behaviour Change Program. Vicroads will contact you and advise which program you need to complete. You will need the certificate of completion to obtain your driver’s licence at the end of your suspension or cancellation period.
You will also have a defence of reasonable mistake or a factual dispute relating to the charge.
If you have been charged with Drug Driving, it is imperative that you contact an experienced legal practitioner so that the best defence can be identified for your case.
 Road Safety Act 1986 (Vic) s 49(1)(bb)
 Road Safety Act 1986 (Vic) s 49(1)(a).
 Road Safety Act 1986 (Vic) s 49(1)(ca)(eb).
 Road Safety Act 1986 (Vic) s 55A.
 Road Safety Act 1986 (Vic) ss 49(ca)(eb), 55(1).
 Road Safety Act 1986 (Vic) s 55D(1).
 As of 1 July 2019 the value of a penalty unit is $165.22
 Road Safety Act 1986 (Vic) s 55D(3).
 Road Safety Act 1986 (Vic) ss 55A(2), 55D(8).
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Views expressed in this article are not necessarily endorsed by Leanne Warren and Associates.