Driving on Cannabis in Australia

Driving On Cannabis: The Aussie Guide [All States]

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Key points

  • Current roadside drug testing does not test for impairment, rather the mere presence of a drug
  • As such, under current laws, even if you are not currently impaired whilst driving, you may still be charged
  • There is a race to develop new technology to be able to test for cannabis impairment

With medicinal cannabis now being legal in Australia, and complete legalisation inevitable, find out all there is to know about driving on cannabis in Australia.

The Australian Constitution doesn’t does not provide any rules relating to roads and traffic. Therefore, it’s up to each individual state and territory to form their own set of legislation around the topic.

Although the rules differ slightly from state to state, they remain mostly similar. But what about the laws around cannabis and the possible effects it might have on your driving?

Before we dive in, please keep in mind that this article does not constitute legal advice. Should you require legal advice, please seek a lawyer with the relevant qualifications and licences.

Testing For Cannabis Whilst Driving

Currently, there is no device able to test for cannabis impairment anywhere in the world. This make it extremely difficult for authorities to objectively decide whether or not a driver is also impaired if cannabis is found in their system.

As you may or may not know, THC, the principal psychoactive constituent of cannabis, can last in your system far beyond impairment. Which is why the current solution of simply testing whether the chemical is in your system or not is flawed.

Until such technology is developed, unfortunately, it is the system nearly all of the Australian states currently employ.

The test for impairment is still undertaken by the officer(s) at the scene.

New South Wales

Mobile Drug Testing (MDT) is the primary method used by the NSW Police Force to test for illicit substances at their roadside operations.

An initial test will be conducted with a swab of your tongue, if the result is positive for cannabis, you will be asked to undertake a further saliva test in their van or back at the police station.

It is an offence to refuse any of these tests or not cooperate with the police during roadside testing.

NSW Police aim to double their MDT operations to 200,000 per year in 2020.

Penalties

Under the Road Safety Plan 2021, penalties have been simplified for those first-time offenders of driving under the influence of cannabis.

If you receive a positive result in both the roadside and further lab testing, you will be fined and suspended from driving for 3 months. A second offence will land you in court and possible license disqualification.

Victoria

Victorian Police conduct drug roadside testing by first conducting a test of your saliva. If drugs are detected in the preliminary test, a further lab test will be done which may be further saliva or blood testing.

Police in Victoria are also able to conduct physical test to test for drug impairment. These involve an assessment of your physical behaviour, coordination, and balance.

The penalties for positive readings depend on whether you’ve had previous offences or any other drug offences.

Penalties

If you fail a roadside drug test, and the police only give you an infringement notice for your first offence, you will:

  • Receive a fine to the value of three penalty units
  • Have your licence or learner permit suspended for six months
  • Need to complete a Drug Driver Program in the first three months of your suspension period or your licence/learner permit will be cancelled

If police determine you’ve been driving whilst impaired by drugs and it’s your first offence, you will:

  • go to court
  • receive a fine of up to 12 penalty
  • have your licence or learner permit cancelled for at least 12
  • need to complete an Intensive Drink and Drug Driver Behaviour Change
  • have a zero BAC condition for three years

Penalties and consequences vary depending on your individual circumstances. For all the possible penalties relating to driving on cannabis in Victoria, see VicRoads.

Queensland

Queensland police also regularly conduct roadside drug testing through the use of a saliva test. The testing kit they use tests for the presence of the following drugs:

  • Methylamphetamine — also known as speed and ice
  • MDMA — the active ingredient in ecstasy
  • THC — the active ingredient in cannabis

Upon request of a police officer, you must provide your saliva to be tested for drugs. This result takes about 3 to 5 minutes to come back. If the result is positive, you will be asked to undertake another saliva test. If this test is also positive, the samples will then be further analysed in a lab.

Currently in Queensland, there is a zero-tolerance approach to driving on cannabis and other drugs. Meaning if there’s any trace of the above chemicals in your system, you may be penalised.

Penalties

If the above tests come back as positive, your licence will be immediately suspended for 24 hours. If you are subsequently charged with driving with a relevant drug present and have no other pending drug driving charges, your licence will remain valid your court date.

Upon your court date, the magistrate may:

  • disqualify you from driving for between 1 to 9 months
  • fine you up to $1,868
  • impose a maximum term of imprisonment up to 3 months

If the police officer determines the cannabis or other drugs in your system has impaired you driving abilities, the magistrate may:

  • disqualify you from driving for up to 6 months
  • fine you up to $3,736
  • impose a maximum term of imprisonment up to 9 months

Western Australia

Western Australia has some of the most lenient policies when it comes to driving on marijuana.

Similar to other states, however, WA police have the authority to stop drivers suspected of driving while impaired by any drug, including cannabis.

Penalties

The current penalty for the offence Driving with Prescribed Illicit Drug in Oral Fluid (traces of cannabis found in your system) is a maximum $500 fine and three (3) demerit points. No driving ban, no court date. You can even still drive off after testing positive.

It all changes if the police officer determines you’re driving while impaired. Then you’ll be charged under the offence Drug Impaired Driving under the Influence of Drugs and receive a fine between $900 and $2,500 along with a minimum 10-month licence suspension.

Repeat offender? The consequences go up, dramatically. For those penalties, see the WA Police website.

Changes are looming, however, with some political parties asking for major reforms to the WA cannabis driving laws, bringing them closer in line with the other states.

Proposals include:

  • Instant 24-hour roadside bans
  • Far higher fines and longer licence suspensions
  • New laws recognizing driving on a combination of alcohol and drugs

For example, if you’re found driving on alcohol and meth, you could be fined up to $5,600 and lose your licence for 15 months, under the proposed new laws.

South Australia

South Australia has some of the toughest penalties for anyone caught driving on cannabis. In 2017, the SA parliament approved changes to the laws in an effort to improve the safety of all road users.

24% of those who died on the road between 2012 and 2016 tested positive for THC, methamphetamine, MDMA, or a combination of these. Unfortunately, they don’t say don’t include the numbers for those who only tested positive for THC.

Currently, a single roadside test can be conducted on you. If the result is positive, an oral fluid sample will be sent to the lab for further analysis.

Unlike some other states, South Australian police don’t conduct separate testing for cannabis impairment whilst driving. They only care whether the substances are in your system or not.

Penalties

If it’s your first offence to testing positive with cannabis in your system whilst driving, you’ll be given an on the spot fine of $587, 4 demerit points, and lose your licence for 3 months. Or, depending on the officer, a court penalty between $900 and $1,300, 4 demerit points, and lose your licence for not less than 6 months.

As you can guess, for every offence you have, the penalties become more and more severe.

Don’t feel like cooperating with police during a roadside drug test? You’ll lose your licence for 12 months, be hit with 6 demerit points, and a face a court penalty between $900 and $1,300. Harsher penalties than testing positive for driving on cannabis for the first time.

Tasmania

Tasmanian police use a similar method to test for drugs in your system. A saliva test can be randomly conducted on you whilst driving by any uniformed police officer, but only after a breath test has been done first.

If the saliva test returns positive for either THC, MDMA, or methylamphetamine, a further oral fluid sample will be taken and set to the lab for further analysis.

Unlike other states where police can issue fines on the spot and charge you with an offence, the lab must first confirm the presence of marijuana in your system. You are also still allowed to drive after the test, unless the officer deems you impaired, following which you must surrender your keys.

Penalties

First offence driving on cannabis in Tasmania? You’ll be hit with 4 demerit points and possibly lose your licence for 3 months, along with a hefty fine between $900 and $1,300.

Remember – the penalties are higher if you refuse the drug test.

Northern Territory

Northern Territory first started testing for drugs in drivers back in 2016, including cannabis. The laws have grown and changed over time with new equipment and processing standards.

Today, NT police can take a sample of your saliva or blood during a random roadside drug testing, if they believe you’ve committed and offence of driving with cannabis or other drugs in your system, or if the officer believes you’ve been involved in a crash.

Penalties

Unlike other states, the NT is the only state where you could possibly go to prison for a first time drug driving offence. Up to 3 months. You’ll also get a fine to go along with that time. Surprisingly, even though you might head to prison, your driver’s licence will still be completely valid.

Keep in mind, however, it’s highly unlikely the court will sentence you to prison for driving on cannabis the first time. Unless it’s a highly unusual case.

Australian Capital Territory

Just because smoking cannabis in the ACT is now legal, doesn’t mean you can smoke and joint then head down to Maccas straight away. It’s still an offence to drive with cannabis in your system, whether you’re impaired or not.

In the ACT, the police conduct a three step process before you can be charged with an offence. First, an oral test is conducted, followed immediately by a ‘preliminary oral fluid analysis’. If these two tests are positive, a third sample will be taken which will be sent for analysis at a lab.

Only after the lab results return positive can you be charged with an offence.

Penalties

If it’s your first offence driving on cannabis in the ACT, you could face a fine of up to $1,600. A court can also order a period of licence disqualification as well.

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