Being caught driving with drugs in your system – not necessarily impairing your driving – can results in tough penalties. You may be charged with failing to pass a roadside screening test, driving while impaired by a drug, or refusing to cooperate with the police.
If you are found to have been over the legal blood alcohol limit as well, there are other, more severe penalties.
You can refuse a roadside saliva drug test, but you will be treated to the harshest penalties as if you had a positive drug test result.
If you have been charged with drug driving, contact your lawyer immediately, especially if you have a previous drink or drug driving conviction. We can help.
It is illegal to drive with methamphetamine, ecstasy and cannabis in your system, but being impaired by a drug while driving is another offence.
Immediate licence suspension
Police may suspend your licence on the spot if you are charged with certain drug-driving offences, with the suspension held until a decision is made in court.
Roadside saliva testing
Victoria Police are allowed to test the saliva of a driver any time for traces of illegal drugs.
If you test positive to the second swab, you will be unable to continue to drive and may not be allowed to drive for 24 hours. If this second test is negative, you will be allowed to drive.
All positive results are sent to the lab for further testing, and all results are based on these more extensive tests.
To challenge this result you must have your own test, so ask for part of the sample so you can get your own test performed independently. Do your test quickly.
Drugs able to be detected include:
- Cannabis
- MDMA
- Cocaine
- Amphetamines
- (More drugs from benzodiazepines to heroin can be detected but are not currently tested for)
Cocaine was added to the list after a Greens campaign in NSW, who argued that roadside drug tests targeted lower socio-economic members of our communities – poor people are more likely to use meth than the wealthy, who overwhelmingly prefer more expensive drugs like cocaine.
While not currently tested for, according to data from the Centre for Road safety, benzodiazepines (like Valium and Xanax, used to treat sleep and anxiety) are the most common drug found in drivers in road accidents.
Police must follow a specific procedure:
- Only specially trained police officers are allowed to give you the test.
- You (the driver) is asked for a saliva sample using a small absorbent pad placed on the tongue for a few seconds.
- The sample is analysed, taking about three minutes.
- Any driver with a positive result will be asked to take another test to confirm.
- If the second test is positive for a drug, the sample is sent to a lab to confirm.
- A positive lab result is used for the basis of charging a driver with an offence.
- Saliva tests do not detect prescription drugs or common medicines such as cold and flu tablets.
What happens if the test is positive for a drug
You may be charged with drug driving if police believe that you had an illegal drug in your system while driving, or you had a prescription drug in your system while you were driving, but you weren’t taking the drug the way it was prescribed, and it has affected your driving.
What to do at the roadside
- Don’t offer police any information about your drug use
- You have the right to be silent, but you must give police basic information about yourself such as your name and show them your driver’s licence
- Whatever you tell police will be recorded
There are several types of drug driving offences:
- Driving with prescribed drugs in oral fluid (saliva)
May attract an infringement notice instead of a charge. Attracts 12 penalty units. - Driving with more drugs than prescribed
This offence is characterised by police believing you to be driving while affected by a drug, but not illicit drug appears on a blood test. To plead not guilty to this offence, you must be able to show you took the medicine exactly as prescribed by your healthcare professional. Attracts 12 penalty units. - Driving while impaired
You can be charged with driving while impaired offences by police if your blood or urine test shows drugs were in your system after you were given a drug impairment assessment. Attracts 12 penalty units. - Driving under the influence
Police must prove you had drugs in your bloodstream, and that you weren’t able to properly control your vehicle as a result. Attracts 25 penalty units or three months in jail. - Refusal offences
If you refuse a drug test, or blood, saliva or urine test, you can be charged with refusal offences. Attracts 12 penalty units and loss of licence for up to two years. - Driving with drugs or alcohol present
If you are caught driving with more than a prescribed limit of certain drugs or alcohol present. Penalties can be higher for this offence, up to 30 penalty units.
Penalties for drug driving
You can be fined via an infringement notice or go to prison for drug driving offences in Victoria.
In more serious cases, your licence will be cancelled and you will be disqualified from driving for at least six months.
If you are found guilty and are given an infringement notice, your licence will be suspended (not cancelled), returned to you at the end of your suspension period.
You may also be given a Community Corrections Order or an Undertaking, at the Magistrate’s pleasure.
You will be required to do a Behaviour Change program.
In court…
The prosecution (police) have to prove that you were driving and that you had consumed drugs.
A Magistrate is unlikely to send you to prison if it is your first offence, but if it is not your first offence, the maximum penalty units is higher (90-270 penalty points).
Had a positive drug-driving test? We can help.
Contact Vanessa Ash and Associates today for advice.