Drug and Drink Driving – Testing Times…

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Whilst most of us are familiar with drink driving laws, drug driving laws operate somewhat differently.  With many jurisdictions now de-criminalising or even legalising some soft drugs, its helpful to understand how the “driving under the influence” regime applies to drugs.

Drug driving laws differ from drink driving laws in that drug driving laws are based on a ‘detection’ threshold where any presence of a prescribed substance in a driver is deemed to be an offence.  Drink driving laws, on the other hand, are based on a historical science‑based model that is accepted and implemented worldwide on an impairment threshold with a prescribed blood alcohol content.  In Victoria, that limit is 0.05.

There are now a number of offences involving driving and drugs which police can choose from.

1. Driving with prescribed drugs present in oral fluid 

Police may charge you with this offence if you get pulled over for random testing and they find that there is a prescribed (or illicit) drug present in your oral fluid. This oral fluid test shows up cannabis, methylamphetamine (or speed) and ecstasy. Depending on your level of impairment it is possible to be issued an an infringement notice instead of being charged for this offence.  

2. Driving with more drugs than prescribed 

Police will charge you with this offence if they suspect that you were driving while affected by a drug but no illicit drugs show up in your blood test. If you are charged with this offence and plan to plead not guilty, your defence must show that you took the medicine exactly as you were told to by your doctor, chemist or dentist. 

3. Driving while impaired 

Police will charge you with this offence if your blood or urine test show drugs were present after they gave you a drug impairment assessment. 

4. Driving under the influence 

If you are charged with this offence the police must prove that you had drugs in your system and that you could not control your vehicle properly.

5. Refusal offences 

You will be charged with this if you refused to have a drug test or give a sample of blood, saliva or urine. The defences to charged with a refusal are very limited and the penalties are steep.

6. Driving with drugs and alcohol present 

Drivers may be charged with a separate offence if they are caught driving with more than the prescribed amount of alcohol and illicit drugs present. The penalties for this offence are higher.

Saliva Testing

There are three main offences which might arise as a result of having your saliva or blood tested and (quite obviously) a saliva test or blood test is required to prove these offences. 

A charge under 49(1)(bb) relates to having illicit drugs in your body at the time of driving.

A charge under 49(1)(h) relates to being over the limit at the time you undergo a saliva test which can be up to three hours after you have stopped driving.

A charge under 49(1)(i) relates to being over the limit at the time you undergo a blood test which can be up to three hours after you have stopped driving.

The saliva test can be performed at random drug testing stations in the same manner that booze buses currently conduct preliminary breath tests, except 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. This includes blood taken from a driver at a hospital following a motor vehicle accident, blood taken when a breath test machine is not able to test your breath properly, blood taken if a driver requests a blood test after having failed a breath test. So if the police are getting a sample of your blood for any reason it is likely they will test it for illicit drugs and charge you with drug driving if any trace of a prescribed illicit drug is detected. The saliva or the blood is tested in a laboratory which can take several months. 

It should be noted that under current Victorian law ANY amount of drug found in your system constitutes an offence. 

These are relatively new offences and are quite technical. Defences are likely to be found and tested over the next few years. If you  have been charged with a drug driving related offence, you should seek expert legal advice. There are often ways to defend charges and avoid licence loss in this new, complicated and technical area of law.  


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