In Victoria, drivers can be charged for driving while impaired by any drug, including illicit, prescription and non-prescription drugs and medications. Drivers can also be charged for driving with the presence of an illicit drug in their body, regardless of whether they are impaired.
If you test positive test for the presence of an illicit drug during roadside testing, you should call an experienced drug driving lawyer as soon as possible. We can help you assess your legal options to achieve the best possible outcome in court.
See here for more on individual drug driving offences and the relevant penalties.
How does roadside drug testing work?
The police routinely conduct random roadside drug testing across the state, similar to random breath testing for alcohol. Roadside testing consists of an oral fluid test, which detects even trace amounts of illicit drugs (such as cannabis, MDMA and methylamphetamine).
A positive oral fluid test result indicates the presence of one of the three illicit drugs in the body. The test detects the drug’s active ingredient and depends on factors such as the amount taken, the potency of the dose, other drugs used, and body metabolism. This is the case regardless of whether the driver is impaired, and it is the reason why drivers can be charged after the effects of a drug have ceased.
The roadside drug testing process involves a preliminary and a secondary oral fluid test at the roadside using two different devices. The officer takes a sample of saliva by placing an absorbent collector in the mouth or on the tongue for a few seconds. The sample is then analysed at the roadside, which takes around three minutes. The driver is asked to undertake a secondary roadside test if the test is positive. If the secondary test is also positive, the sample is sent to a laboratory for confirmation. A confirmed positive result will likely lead to a drug-driving charge.
If police believe the driver is affected by any other drug other than those detected in an oral fluid test, even prescription medications, they may request the driver to undergo a drug impairment assessment and blood or urine test.
The police must follow procedural rules when taking these samples. If you are concerned about the circumstances of your testing, you should consult with an experienced drug driving lawyer as soon as possible.
What drugs do police test for in roadside drug tests?
In Victoria, roadside saliva tests (also known as oral fluid tests) can detect the presence of the following illicit drugs:
- delta-9-tetrahydrocannabinol (THC), which is the active component in cannabis
- methamphetamine, which is found in drugs such as ’speed’, ’base’, ‘ice’, and ‘crystal meth’
- 3,4-methylenedioxymethamphetamine (MDMA or ecstasy)
It is important to understand that driving whilst impaired by a drug is a separate offence from driving whilst exceeding the prescribed concentration of drugs. ‘Prescribed concentration of drugs’ means any level of the drug present in the blood or fluid (Road Safety Act 1986 s 3(1)). Unfortunately, this often means if someone has used cannabis the day before, even if they are not impaired, it is likely to produce a positive test and charges.
What about drugs that aren’t detected in an oral fluid test?
It is important to understand that currently in Victoria, oral fluid tests only detect the presence of the above listed drugs in the body and do not test for impairment. If the police believe a driver is impaired and/or affected by another drug that is not detected in a roadside test, whether prescription medication or another drug, they may request the driver to undergo a drug impairment assessment to evaluate their physical coordination and cognitive functions. If the driver fails an impairment test, a subsequent blood or urine test can detect a wide range of substances, including those not specifically targeted in roadside tests.
Other types of drug tests
Victoria Police can use various testing methods to detect drugs. While saliva or oral fluid testing is the primary method, police may also use urine, blood and hair tests.
If an oral fluid test indicates the use of a drug or in cases where a comprehensive screen is required, you may be requested to undertake a urine test or a blood test. Blood sample testing is the most accurate method and measures drug concentrations precisely. A comprehensive screen is more likely to be required if an accident occurs.
While less common and not typically used in roadside drug testing, hair analysis may be utilised during investigations or as a follow-up procedure. Hair analysis provides information about drug use over a longer duration and can establish a pattern of drug use over time.
What will I be charged with?
The drug-driving legislation contained in the Road Safety Act 1986 is surprisingly complex. Depending on the circumstances, several drug driving charges may be relevant.
See our Drug Driving Charges page for an overview of the drug driving charges in Victoria, including the penalties, mandatory licence loss, and, where appropriate, immediate suspension provisions.
Offence for driving while impaired by drugs:
Offences where drugs are detected in a roadside test or within 3 hours of driving:
- s49(1)(bb) – prescribed content of a drug present whilst driving or in control of a motor vehicle
- s49(1)(bc) – driving with over the prescribed concentration of drug and alcohol
- s49(1)(h) – prescribed content of drug present in oral sample within 3 hours of driving or being in control of a motor vehicle
- s49(1)(i) – prescribed content of drug present in blood taken within 3 hours of driving or being in control of a motor vehicle.
- s49(1)(j) – ExPCA (Blood Analysis) of alcohol and drugs within 3 hours of driving or being in charge of a motor vehicle
Offences for refusing oral fluid testing:
Offences for refusing a drug impairment assessment, blood or urine test:
- s49(1)(ca) – refuse to undergo drug impairment assessment
- S49(1)(ea) – refuse blood or urine sample per s55B following impairment assessment or refusal of blood following an accident.
What to do if you have been charged with drug driving
If you test positive in a roadside drug test or are facing related charges, it’s crucial to seek expert legal advice immediately. Consulting a criminal law specialist can help mitigate the consequences and ensure the minimum penalty. Always request legal advice before discussing your case with the police.
Our team at Dribbin & Brown Criminal Lawyers specialise in drug driving offences, and we are here to help you achieve the best possible outcome.
It is essential to understand what kind of drugs are detected in roadside drug tests and the penalties for drug driving. If you have been charged with a drug driving offence, it is crucial to seek legal advice from a specialist drug driving lawyer as soon as possible.
See our Drug Driving Offences for more.
Michael has been a Criminal Defence Lawyer since 2007 and is one of the founding partners of Dribbin & Brown Criminal Lawyers. He has been a criminal law specialist (accredited by the Law Institute of Victoria), since 2012 and has a broad depth of experience in criminal law, traffic law and intervention order law.
