The Victorian state government has passed amendments to the Road Safety Act 1986 (Vic) granting magistrates discretion in determining penalties for drivers who test positive roadside for tetrahydrocannabinol (THC), the psychoactive component of Cannabis, provided they hold a valid prescription and are not impaired while driving.
The legislation was passed in November 2024 and the new laws apply from 1 March 2025 to all cases involving failing oral fluid test (THC) that occurred before or after 1 March 25 (retrospective legislation).
Background to the amendment:
Since the legalisation of medicinal cannabis in Australia in October 2016, patients have been prescribed cannabis for various medical conditions including pain relief, nausea, depression and anxiety. However, existing road safety laws did not differentiate between medicinally prescribed and recreational cannabis use, leading to automatic license suspensions and disqualification for drivers who tested positive for THC roadside, regardless of impairment. This approach was criticised for penalising patients who were not impaired and had a legitimate medical need for cannabis with a legal prescription.
The amendment:
The recent amendment to section 51 of the Road Safety Act 1986 (Vic) addresses this issue by allowing Magistrates to exercise their discretion when sentencing drivers who test positive for THC, provided they meet the following criteria:
- Valid Prescription: The driver must have a legitimate prescription for medicinal cannabis and the consumption of cannabis was as legally prescribed.
- No Impairment: The driver must not be impaired at the time of driving.
This change ensures that individuals using medicinal cannabis responsibly are not unfairly penalised with mandatory licence loss.
Implications of the new legislation:
This reform came into effect on 1st March 2025 and applies to all offences which occurred before or after 1st March 2025.
This amendment to the Road Safety Act 1986 (Vic) does not provide a full defence to driving with THC in your system – it is still a criminal offence to drive with THC in your system, however Magistrates now have discretion whether to interfere with your driver’s licence.
You could still be convicted/found guilty and have a criminal record in relation to driving with THC in your system.
If you plead guilty or are found guilty of driving with THC present in your saliva, a Court under the existing law has the following sentencing powers:
- Find a person guilty and dismiss the charge without imposing a further penalty but this sentencing order can be with or without conviction.
- Impose an adjourned undertaking (a promise to be of good behaviour), with or without a conviction.
- Impose a fine (and to determine the amount of that fine) with or without a conviction.
When appearing before the Court it is essential that you provide a copy of your medicinal cannabis prescription or a letter from your doctor outlining the valid prescription or the medicinal cannabis container with the prescription sticker attached.
You may also be required to provide sworn evidence that you had consumed the cannabis as prescribed.
When issued with an infringement notice roadside:
It is important to note that if you are issued with a Traffic Infringement Notice (TIN) in relation to a positive test for THC, the only way to avoid mandatory suspension/disqualification is to elect to have the matter heard at Court so that the Magistrate can exercise their discretion to interfere with your licence.
It is important to contact a lawyer immediately upon being served with an infringement notice for this offence to have the matter listed at Court. If you fail to have the matter listed at Court, mandatory licence suspension will be effected. You have 28 days from the date of issue to elect to have the matter heard at Court.
Future potential changes:
While this amendment addresses the immediate concern of automatic licence suspensions, further research and trials are underway to assess the impact of medicinal cannabis on driving ability. An 18-month trial involving 70 medicinal cannabis users driving on an off-road track is currently in progress to gather data on this issue.
It is hoped that following this trial, a full defence for medicinal cannabis will be provided as it is for anyone taking a prescription medication who is not impaired.
The amendment to the Road Safety Act 1986 (Vic) marks a progressive step in accommodating the needs of medicinal cannabis users in Victoria, ensuring that road safety laws are applied fairly.
Ben Watson of our office has advocated for this change in the law in recent years:
https://www.johnstonereimer.com.au/herald-sun-victoria-considering-medicinal-cannabis-driving-trial/
https://www.johnstonereimer.com.au/abc-774-drive-radio-medicinal-cannabis-drug-driving-reforms/
Please contact our office for advice and representation if you have been charged with drug driving on 03 8658 0040.
