In Victoria, drivers can be charged for driving while impaired by any drug. The term “drug” includes illicit, prescription and non-prescription drugs and medications.
Different testing methods are used by the police to detect which drugs the driver is affected by. Roadside saliva testing is used to detect trace amounts of illicit drugs (such as cannabis and MDMA). But the police may also ask drivers to undergo a drug impairment assessment and blood/urine tests if they believe the driver is affected by prescription drugs or other forms of medication.
It is largely irrelevant whether or not the driver feels affected by the drug at the time of driving. If testing detects drugs in your system, the police have the power to charge you with a drug driving offence. This explains why people can be charged with drug driving offences days or even weeks after taking drugs.
If you are pulled over for a roadside drug test, it is best to comply with the officers orders. If you return a positive test result, you should call a specialist criminal lawyer as soon as possible. A drug driving lawyer can assess your legal options and help you achieve the best possible outcome in court.
Please note that this article is not legal advice. It only presents general information.
Drug Driving Offences and Penalties in Victoria
Drug driving offences in Victoria are legislated under the Road Safety Act 1986 (Vic). The main drug driving charges are:
- Driving while under the influence of any drug to such an extent that you are incapable of having proper control of the vehicle (s49(1)(a))
- Driving while impaired by any drug (s49(1)(ba))
- Driving whilst meeting or exceeding the prescribed concentration of drugs (PCD) (s49(1)(bb))
All drug driving offences carry serious penalties and a mandatory period of disqualification from driving. For full details, please see Drink and Drug Driving Offences in Victoria.
Roadside Testing for Illicit Drugs in Victoria
What Happens During a Roadside Drug Test?
All Victorian police officers have the right to pull over a driver at any time and test for traces of illicit drugs.
The procedure for roadside testing for meeting or exceeding the prescribed concentration of drugs is as follows:
- The police officer asks the driver to provide a preliminary saliva sample. The driver will then have to place a small absorbent pad on their tongue.
- The police will analyse the preliminary sample at their roadside station. This takes a few minutes.
- If the result is negative, the driver can leave. However, if the preliminary result is positive, the driver will be asked to take a second test, and provide an evidentiary sample of saliva for testing.
- The second saliva sample will be sent to a laboratory for further testing.
- The results of the laboratory test will determine if the driver will be charged with a drug driving offence.
For driving while under the influence or while impaired charges, the police might also require you to participate in a roadside impairment assessment test.
What Drugs Do The Police Roadside Test For in Victoria?
In Victoria, roadside drug tests can detect the following illicit drugs:
- THC (the active component in cannabis)
- Methamphetamine (found in drugs like speed, ice and crystal meth)
- MDMA (also known as ecstasy)
Roadside drug tests are not designed to detect prescription drugs or non-prescription medications (see below for more details). However, there have been some cases where prescription medication has shown up on roadside testing.
How Long Can Illicit Drugs Be Detected For?
There is no standard answer as to how long illicit drugs can be detected. The answer varies depending on:
- The physical attributes and metabolism of the person being tested;
- The type of drug that the person has taken; and
- How much of the drug the person has taken.
According to this academic study, saliva tests can detect:
- THC for around 12-30 hours after use;
- Methamphetamine for around 2 days after use; and
- MDMA for around 2 days after use.
However, there are many cases where people have tested positive for illicit drugs days or even weeks after using.
What If I’m Not Actually Affected by Illicit Drugs at the Time of Driving?
For a charge of meeting or exceeding the prescribed concentration of drugs, it is irrelevant whether or not you feel impaired or affected by illicit drugs at the time of driving.
The prescribed concentration of illicit drugs for all drivers is zero. Therefore, if the police detect any concentration of illicit drugs in your blood or bodily fluid, they will likely charge you with driving whilst meeting or exceeding the prescribed concentration of drugs (PCD) (s49(1)(bb)).
For charges of driving while under the influence of or impaired by drugs, the police must prove you were in fact incapable of having proper control of a vehicle, or were impaired in your ability to drive.
Some legal defences do exist in relation to drug driving charges (see below for details). It is best to discuss your legal options with a specialist drug driving lawyer like Sher Criminal Lawyers.
Can I Be Tested For Drugs After Driving a Motor Vehicle?
In Victoria, you can be tested and charged with drug driving up to 3 hours after driving a motor vehicle (s 49(1)(h) and s49(1)(i).
However, the prosecution must prove that your PCD reading was not due solely to consuming drugs after driving the motor vehicle.
Testing For Prescription Drugs and Other Medication in Victoria
How Do the Police Test for Prescription Drugs and Medications?
If the police believe that you are driving while impaired by prescription drugs or other medications, or drugs other than THC, methamphetamine, or MDMA, they may ask you to undertake a drug impairment assessment. You may then be asked to provide a blood or urine sample to detect which prescription drugs or non-prescription medications you have used.
Alternatively, if you have been taken to hospital for treatment as a consequence of an accident, your blood will be taken by medical staff and provided to the police for testing for drugs and alcohol.
What Happens During a Roadside Impairment Assessment?
During a roadside impairment assessment, the police will generally ask you to perform certain tasks in order to assess your physical condition, balance, coordination and attitude. The police must film the test for evidence purposes.
After the assessment, if the police believe that you have been driving while impaired by drugs, you may be required to undertake a blood or urine test in order to determine which drugs are present in your system.
Refusing a Drug Driving Test
In Victoria, it is illegal to refuse a drug driving test.
There are two offences under the Road Safety Act 1986 (Vic) which relate to refusing a drug driving test:
- (s49(1)(ca)) Refusing drug impairment assessment;
- (s49(1)(eb)) Refusing to comply with request for oral sample.
Both offences carry serious penalties and mandatory disqualification periods from driving. For more information, please see Drink and Drug Driving Offences in Victoria.
Legal Defences to Drug Driving Charges
Only a few defences exist in relation to drug driving charges. Potential defences might include:
- The failure of the police to follow proper procedure when conducting the drug test.
- The fact that you were not driving or in control of the vehicle.
- The fact that you unknowingly came into contact with the drug through some other means.
- An error with the drug testing device used.
- The fact that you were impaired by prescription drugs in accordance with professional medical advice.
It is important that you speak to a specialist drug driving lawyer in order to assess your legal options. Drug driving matters are highly complex and it is extremely difficult to argue any of the above defences in court.
What to Do If You Have Been Charged With Drug Driving
If you have been charged or are under investigation for a drug driving offence, please contact Sher Criminal Lawyers immediately.
Our team specialises in drug driving offences and is here to help you achieve the best possible outcome in your matter. We have years of experience advising and representing clients in drug driving matters before the Magistrates Courts of Victoria.
Do not speak with the police or attend court until you have spoken with one of our specialist drug driving lawyers. We will assess the police evidence, advise you of your legal options and present your case in court.
Our drug driving defence specialists are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.