As the use of medicinal cannabis continues to grow in Victoria, it is crucial for patients to be aware of the legal implications associated with driving while using these products. Despite its therapeutic benefits, the use of medicinal cannabis gives rise to significant legal issues for drivers due to the presence of delta-9-tetrahydrocannabinol (THC), the psychoactive compound in cannabis.
Understanding how current laws apply to medicinal cannabis users is essential for avoiding severe penalties for drug driving, including licence suspension and fines. This article provides an overview of the legal framework surrounding medicinal cannabis and driving in Victoria, and what patients and drivers need to know about the law.
If you have been charged for a drug driving offence, it is crucial to seek experienced legal advice from a drug driving lawyer.
The Current Law: Medicinal Cannabis Driving Victoria
Since the legalisation of medicinal cannabis in Australia in 2016, patients in Victoria have access to a range of prescription cannabis products. However, the psychoactive compound in cannabis, delta-9-tetrahydrocannabinol (THC), can be detected in oral fluid and blood long after the use of cannabis has ceased.
As the law does not currently differentiate between impairment and the mere presence of the substance, drivers in Victoria who use medicinal cannabis risk facing penalties under the Road Safety Act 1986 (the Act), including driver licence loss and fines, regardless of whether the THC is from medicinal or recreational use.
Patients using cannabidiol (CBD) products, which do not contain the psychoactive compound THC (Delta-9-tetrahydrocannabinol), are permitted to drive in Victoria, provided they are not otherwise impaired. While CBD-only products are not psychoactive and are non-impairing, these products can often contain trace amounts of THC which is detectable in roadside testing.
Offences under Road Safety Act and medicinal cannabis
In Victoria, it is an offence under section 49(1)(bb) of the Road Safety Act 1986 (the Act) for a person to drive a motor vehicle or be in charge of a motor vehicle with THC present in their blood or oral fluid. It is also an offence against section 49(1)(h) of the Act if an oral fluid sample test detects the presence of THC within 3 hours of driving or having been in control of a motor vehicle and the presence of the prescribed illicit drug was not due to consumption since having been driving.
Criticisms of the current law
The zero-tolerance policy to THC in drivers’ systems does not differentiate between impairment and the mere presence of the substance and has led to numerous prosecutions, with drivers facing mandatory license suspensions and fines if even only a minute trace of THC is found during random roadside drug testing conducted by police.
These rigid laws have attracted criticism for unfairly penalising medicinal cannabis users. The prejudicial treatment of medicinal cannabis patients who are not impaired is particularly notable given that those being treated with amphetamine-derived products for ADHD and opioids for chronic pain are not criminalised for driving unless impaired.
The Australian Lawyers Alliance (ALA) has been particularly vocal in advocating for changes to these laws. As Greg Barns, a spokesperson for the ALA, pointed out, “cases are coming before the courts every week where people are losing their licence and their livelihood because they are taking prescribed medicinal cannabis and driving.” The ALA argues that the current legal framework is “outdated and unfair,” especially when compared to the treatment of drivers using other prescription medications that have potential impairing effects.
The Government’s Cannabis Driving Trial
In response to growing calls for reform, the Victorian Government passed a bill last year committing to a medicinal cannabis driving trial, to begin in September 2024, that will specifically assess how medical cannabis impacts driving. Approximately 70 participants who use medicinal cannabis will navigate driving courses at closed-road facilities simulating real world driving conditions under the supervision of driving instructors.
Minister for Roads and Road Safety, Melissa Horne, described the trial as a “world first” initiative, highlighting the lack of standardised methods for measuring impairment due to medicinal cannabis globally. The world first trial is being conducted in partnership with Swinburne University and aims to provide empirical data on the relationship between medicinal cannabis use and driving ability. The outcome of the trial could have significant implications for the legal treatment of medicinal cannabis users in Victoria.
While the upcoming trial may be a step in the right direction, it has not been without criticism. Legalise Cannabis MP Rachel Payne has expressed frustration over the pace of reform, noting that similar research has already been conducted by Swinburne University, albeit in a simulated environment. Payne has called for Victoria to follow Tasmania’s example, allowing unimpaired medicinal cannabis patients to drive without fear of prosecution.
The ALA has echoed these sentiments, calling for the suspension of prosecutions for unimpaired medicinal cannabis users while the trial is conducted. Shaun Marcus, the ALA’s national president, has argued that prosecuting individuals merely for having THC in their system—without evidence of impairment—goes against the intended purpose of road safety legislation.
THC and Road Safety
The legal stance on driving with THC in a person’s system is informed by concerns over road safety. According to VicRoads, THC is known to impair cognitive and motor functions, increasing the likelihood of accidents. A 2021 meta-analysis of studies found that cannabis use increases the risk of crashes by 11 to 42%. Notably, however, according to an article in the Australian Journal of General Practice, this range is comparable to the effects of antidepressants and sits below the estimated risk for a blood alcohol concentration of less than 0.05.
In Tasmania, drivers using legally prescribed medical cannabis may not be charged if THC is found in their system as long as their driving is not impaired and they can properly control their vehicle. Internationally, there is a significant variance in how jurisdictions handle this issue. For example, in Canada, a THC blood concentration of over 2 nanograms per millilitre is considered illegal while driving. In Colorado, U.S., the limit is set at 5 nanograms.
Looking Forward: What Can We Expect?
The results of this trial, expected in 2026, will likely play a critical role in shaping future driving laws in Victoria. However, the Victorian Government has not yet indicated what specific changes might be implemented based on the trial’s findings.
For now, it remains essential for medicinal cannabis users to stay informed about their legal obligations and to seek expert legal advice if they face drug-driving charges. The evolving legal landscape surrounding medicinal cannabis and driving requires careful navigation, particularly as new research and trials continue to inform policy decisions.
Conclusion
As it currently stands, in Victoria, any cannabis user faces the risk of prosecution for drug driving regardless of whether their ability to drive is impaired or whether they are using a prescribed medicinal product.
While the Victorian Government’s trial to assess the impact of medicinal cannabis on driving is a significant, medicinal cannabis users continue to be exposed to penalties if THC is found in their system, even if they are not impaired.
As the legal landscape surrounding medicinal cannabis continues to evolve, it is important to understand your rights and responsibilities to help navigate the complexities of the law and avoid severe penalties for driving.
If you need advice and support in relation to drug driving charges, contact us today to speak to an experienced drug driving lawyer.
FAQs
Can you drive while using medicinal cannabis?
Currently, in Victoria, it’s illegal to drive with any amount of Delta-9-tetrahydrocannabinol (THC) in your system, including THC sourced via a medicinal cannabis prescription.
It is an offence under section 49(1)(bb) of the Road Safety Act 1986 (the Act) for a person to drive a motor vehicle or be in charge of a motor vehicle with cannabis present in their blood or oral fluid. It is also an offence under section 49(1)(h) of the Act if an oral fluid sample detects THC within three hours of driving or being in control of a vehicle, provided the presence of THC was not due to consumption after driving.
Driving is permitted with cannabidiol (CBD)-only medicines so long as you are not impaired. However, it is important for drivers to confirm whether their cannabis product contains THC. While many medicinal cannabis products do not contain THC, it should be clearly indicated on the product label. It is, therefore, important to ensure that medicinal cannabis and CBD-only products are sought through legitimate channels to avoid inadvertently using products that contain THC.
What is the THC limit for driving?
Currently, in Victoria, it’s illegal to drive with any amount of THC in your system. You can test positive for THC even if you do not feel impaired, and medical cannabis use does not currently provide an exemption for penalties arising from drug driving laws.
The police only need to show that cannabis is present in the blood or oral fluid of a driver when tested. They do not need to show that the drug has impacted your ability to have control of the motor vehicle.
Can you drive while using CBD oil?
Driving is permitted for those using CBD-only medicines, as long as they are not impaired. However, to be sure that a CBD product does not contain THC, even in trace amounts, it is important to source medicinal cannabis products through legitimate channels to avoid inadvertently using products that contain THC.
When taking medicinal cannabis containing THC, how long does THC remain in my system?
THC can be detected in the body long after the medication’s effects have ceased; however, the period of time for which it is detectable depends on the type of test used.
The article ‘Medical Cannabis and Driving‘ published in The Australian Journal of General Practice indicates the following:
- In oral fluid, THC is typically detectable for 4–6 hours after smoking or vaporising cannabis, although this is highly variable across individuals. In heavy cannabis users, THC may be detectable in oral fluid for up to three days following abstinence.
- In blood, THC is commonly detectable for up to seven days and may be detectable for up to 30 days in extreme cases.
- In urine, depending on the sensitivity of the test, THC may be detectable for up to 24 days.
- The secondary, inactive metabolite of THC, 11-nor-9-carboxy-THC (THC-COOH), which is very commonly used in workplace drug tests, can be detected for up to three months in very heavy cannabis users.
What if I'm caught driving with cannabis in my system?
If you have tested positive in a preliminary roadside oral sample, you will be asked to provide a further oral sample, blood sample, or urine sample for evidentiary purposes. There are procedural rules that must be followed by the police when taking these samples, and you should consult with an experienced criminal lawyer about the circumstances surrounding your testing if you believe the procedure was not followed when obtaining the sample.
If the second sample indicates there was a prescribed concentration of drugs in your system at the time you were subjected to the sample, you will probably be charged for ‘exceeding the prescribed concentration of drugs‘ under section 49(1)(bb) of the Road Safety Act 1986.
If you are facing charges, call our specialist drug driving lawyers, to make an appointment today.
How do Police test for THC?
Victoria Police routinely conduct random roadside drug testing across the state, similar to random breath testing for alcohol. This is a three-stage process that involves an initial and a secondary oral fluid test at the roadside using two different devices. If these tests detect THC, the sample is sent to a laboratory for confirmation, and a confirmed positive result will likely lead to a drug-driving charge.
In Victoria, three drugs are usually tested for, including THC, methamphetamine and 3,4-methylenedioxymethamphetamine (MDMA). It is important to note that roadside tests only test for the presence of drugs and not for impairment, and driving with the presence of an illicit drug is a separate offence from driving under the influence.
There are procedural rules that must be followed by the police when taking these samples, and you should consult with an experienced criminal lawyer about the circumstances of your testing if you believe the procedure was not followed by the police when obtaining the sample.
Can a prescription for medicinal cannabis be used as a defence to a drug-driving charge?
Currently, in Victoria, having a valid prescription for medicinal cannabis is not a defence to a drug-driving charge for cannabis. See here for more on drug driving offences.
