Can I Be Charged If I Wasn’t Impaired?

If you are wondering, “Can I be charged if I wasn’t impaired?”, the answer is yes. Under Victorian law, you can be charged with a drug driving offence even if your driving was not affected and you did not feel impaired. 

The prosecution only need to prove that a prescribed illicit drug was present in your oral fluid or blood while you were driving or in charge of a motor vehicle.

This often comes as a surprise to drivers who believe they were completely sober or who used illicit drugs days earlier.

Do police have to prove I was affected by drugs?

In many cases, no.

For the offence of driving with the presence of a prescribed illicit drug, the prosecution is not required to prove that your driving was dangerous or that the drug affected your ability to drive.

The prosecution generally only needs to establish that:

• you were driving or in charge of a motor vehicle; and

• a prescribed illicit drug was present in your system.

Whether you appeared perfectly normal or were driving safely does not necessarily determine whether an offence has been committed.

Which drugs are tested at the roadside?

Victoria Police conduct roadside oral fluid testing for prescribed illicit drugs, including:

• cannabis (THC);

• methylamphetamine (commonly known as ice or methamphetamine); and

• MDMA (ecstasy).

If the roadside test indicates the presence of one of these drugs, a second sample is usually taken for laboratory analysis.

What if I used cannabis several days earlier?

It is possible to test positive after the effects of cannabis have worn off.

Cannabis can remain detectable in saliva for varying periods depending on factors such as:

• how much was consumed;

• how frequently it is used;

• the method of consumption;

• your metabolism; and

• the sensitivity of the testing equipment.

Feeling completely normal does not necessarily mean the drug is no longer detectable.

What about medicinal cannabis?

Having a lawful prescription for medicinal cannabis does not automatically prevent a drug driving charge.

If your prescribed medication contains THC, you may still commit an offence if THC is detected while you are driving.

Many patients mistakenly believe that a prescription provides a legal exemption. In Victoria, this is generally not the case.

What if I was driving perfectly?

Safe driving is not a defence to a presence-based drug driving offence.

Even if:

• you were obeying the speed limit;

• you passed all police observations;

• you were involved in no accident; and

• you showed no signs of impairment,

you may still be charged if the required drug is detected.

Can I contest the charge?

Yes.

Although impairment is not usually an issue, there may be other legal issues worth investigating.

For example:

• whether police lawfully conducted the roadside test;

• whether the required procedures were followed;

• whether the laboratory testing complied with legal requirements;

• whether the prosecution can prove every element of the offence; or

• whether there are issues affecting the admissibility of the evidence.

Every case should be carefully reviewed before deciding whether to plead guilty.

What penalties apply?

The penalties for drug driving depend on the particular offence and your individual circumstances.

Depending on the case, the court may impose:

• a fine;

• a criminal conviction;

• licence cancellation or disqualification;

• mandatory education or behaviour change requirements; and

• other licensing consequences before you are eligible to drive again.

The outcome will depend on the applicable legislation and the facts of your case.

Should I get legal advice?

Many people charged with drug driving are genuinely surprised because they did not feel impaired at the time they were driving.

The law surrounding drug driving is different from what many people expect, and the consequences can be significant.

At Wilkinson Lawyers, we regularly represent clients charged with drug driving offences throughout Victoria. We can explain how the law applies to your circumstances, review the prosecution evidence, advise whether there are any available defences, and help you achieve the best possible outcome in your case.

Contact Jess Wilkinson on 0468 364 121 or jess@wilkinsonlawyers.com.au to discuss your matter and obtain advice about the best way forward.