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Drug Driving Law in Victoria


It is an offence to take drugs (including many legal drugs) and drive a motor vehicle in Victoria. There are three offence types:

  • driving or being in charge or a motor vehicle while under the influence of alcohol or any drug to such an extent as to be incapable of having proper control of the motor vehicle (s.49(1)(a) Road Safety Act 1986),
  • driving or being in charge of a motor vehicle while impaired by any type of drug (s.49(1)(ba) Road Safety Act),
  • driving or being in charge of a motor vehicle when your saliva or blood contains any trace of illicit drugs.(s.49(1)(bb), 49(1)(h) & 49(1)(i) Road Safety Act)


Driving under the Influence - s.49(1)(a)

This is an old offence and is difficult to prove especially in relation to drugs because it is fairly technical yet vague. For that reason the new drug testing laws were introduced to make it easier to detect and prosecute drug-affected drivers. It is unlikely that any police member would charge a drug-driver with this offence these days given the other alternatives available. Any driver charged under this old DUI offence always has a reasonable chance of success if the driver wishes to go to the effort of getting competent lawyers and possibly expert witnesses to help them. The mandatory minimum period of licence loss for this offence is 2 years disqualification for a first offence, 4 years for a second offence.


Driving while impaired by a drug - s.49(1)(ba)

When police find a driver who appears to be affected by a substance but yields a negative preliminary breath test, the police may require the driver to undergo a drug assessment test. This involves performing some walking and coordination tasks, having the eyes examined, and being video taped throughout. If the police member conducting the test forms the opinion that the driver is affected by drugs, the police can then require that a doctor take a sample of the person's urine or blood. The blood or urine is then tested for drugs and if drugs capable of impairing the driver are found the driver is prosecuted. On a strict reading of the legislation it is not necessary to prove that the drugs impaired the driver's ability to control a motor vehicle. The term 'drug' has a very wide definition and includes over-the-counter and prescription drugs. It is a defence to a charge if the driver proves that his impairment was the result of taking perscription drugs in accordance with a doctor's prescription. For further information see my analysis of these driving while impaired laws. It is an offence to refuse to cooperate with the drug assessment test or to provide the blood/urine samples requested.

Penalties: First offence: 12 months minimum licence cancellation and disqualification.
Subsequent Offence: (which applies if you have any drink driving or drug driving prior) 2 years minimum licence cancellation.
Refusing to provide a sample:  at least 2 years minimum licence cancellation.  
Fines are the same as per the 49(1)(bb) offence as set out in the table below.


Saliva Testing, driving with illicit drugs - s.49(1)(bb), (h), (i)

These three sections create offences of driving while being over the limit (the prescribed limit is any concentration) of certain illicit drugs is in your body. The types of drugs that are currently prescribed as illicit under this section are methylamphetamine and delta-9-tetrahydrocannabinol (amphetamine and cannabis).

The charge under 49(1)(bb) relates to having illicit drugs in your body at the time of driving. The charge under 49(1)(h) relates to being over the limit at the time you undergo a saliva test which can be up to three hours after you have stopped driving. The charge under 49(1)(i) relates to being over the limit at the time you undergo a blood test which can be up to three hours after you have stopped driving. A saliva test or blood test is required to prove the offence under s.49(1)(bb). If that sounds confusing you probably should consult a drug driving legal expert.

The saliva test can be performed at random drug testing stations in the same manner that booze buses currently conduct preliminary breath tests, except a saliva swab is taken and analysed on the spot rather than a sample of breath. A blood analysis can be performed on any blood sample that the person is obliged to give under any provisions of the Act. This includes blood taken from a driver at a hospital following a motor vehicle accident, blood taken when a breath test machine is not able to test your breath properly, blood taken if a driver requests a blood test after having failed a breath test. So if the police are getting a sample of your blood for any reason it is likely they will test it for illicit drugs and charge you with drug driving if any trace of a prescribed illicit drug is detected. The saliva or the blood is tested in a laboratory which can take several months.

Penalties for driving with Cannabis or Amphetamine

Traffic Infringement notice penalty

Approximately a $500 fine and 3 demerit points

Court imposed penalty (first offence)

Up to approx $1,400 fine
Prior to 12/12/2010: Up to six months licence loss.

From 12/12/2010: at least 3 months licence loss.

Second offence

Up to approx $7,000 fine
Prior to 12/12/2010: Up to 12 months licence loss.
From 12/12/2010: at least 6 months licence loss.

Third or subsequent offence Up to approx $14,000 fine

Prior to 12/12/2010: Up to 12 months licence loss.
From 12/12/2010: at least 6 months licence loss.

People who lose their licence as a result of drug driving offence must undertake a drug education and assessment course before being eligible to get their licence back. 

It is an offence to refuse to cooperate with the police when they are conducting a drug test, or obtaining a blood sample.

These are relatively new offences and are quite technical. Defences are likely to be found and tested over the next few years. If you or your client has been charged with a drug driving related offence, you should seek expert legal advice. There are often ways to defend charges and avoid licence loss in this new, complicated and technical area of law. Curiously, very few people who are accused of drug driving bother to take their case to court or even seek legal advice about it.  Perhaps this is because police target young adults at night clubs and dance/rave festivals who are unlikely to be able to afford to fight a court case, or perhaps people are just glad they haven't been charged with a drug use offence.



If your licence is lost for drug driving, you will need to ask a Magistrate for permission to be relicenced. It is impossible to be required to have an interlock installed upon the making of an application to be relicenced following licence loss for drug driving. However,  a drug driving offence is a prior offence for the purpose of determining whether a person is required to have an interlock condition on their licence if they apply for relicensing following a drink driving conviction.



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