Drug Driving Charges: Law, Legal Test Limits & Criminal Offences

There are a number of offences that you can be charged with should you drive on drugs in Victoria. These charges are contained within the Road Safety Act 1986 (VIC).

Check your charge sheet or summons, the charge name and the section of the law will be noted on that document.

Driving Under the Influence [section 49(1)(a)] – When someone drives a motor vehicle (car, motorbike, etc) while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the motor vehicle. This is usually proved with a saliva/blood/urine test and/or observations of police.

Drive whilst impaired by a drug [section 49(1)(ba)] – When someone drives a motor vehicle (car, motorbike, etc) whilst drugs are present in their system and they affected by that substance. This is usually proved with a saliva test/blood/urine test and/or observations of police. The police do not need to prove that you couldn’t control your car, just that you were affected by a substance while driving a car.

Drive whilst exceeding the prescribed concentration of drugs [section 49(1)(bb)] – When someone drives a motor vehicle (car, motorbike, etc) whilst drugs are present in their system. This is usually proved by a saliva test/blood test. An offence is committed if the presence of any prescribed illicit drug is detected, and it does not have to be established that the person was actually impaired by the drug at the time of driving or being in charge of the vehicle.

Refuse to provide sample of oral fluid [section 49(1)(eb)] – When someone refuses to provide a sample of blood or urine as required under law. Police can require any person they find driving motor vehicle to stop and provide a saliva sample at any time. Police can also require a person who they believe has been driving a motor vehicle or has been involved in a car accident within the past 3 hours to undergo a drug test. If you refuse, you may be committing an offence.

Refuse to stop [section 49(1)(d)] – When someone in a motor vehicle refuses or fails to comply with a request or signal given by police to stop and remain stopped. Police must be on duty and in uniform to give the direction. This charge is commonly used if you try to evade a breathalyser station by turning down a side street or U-turning.

If charged with any of the above offences, your licence will most likely be suspended once you are charged. It will remain suspended pending the outcome of the drug driving case before the court. This means that you cannot drive. There are no exceptions and no special licences that you can get to drive during this time. They don’t exist.

The only way that you can try to keep your licence until your matter is finalised in court is to appeal the licence suspension under section 51(10) of the Road Safety Act. You must determine your grounds of appeal, give 14 days notice to the police and prosecution of your appeal and serve documents; then your matter will be listed in the Magistrates Court for hearing. You cannot drive during this 14 day notice period. At the appeal hearing, you must demonstrate “exceptional circumstances” as to why your licence should not be cancelled until your court case is heard (for example: the case against you is weak and you have a real chance of winning). You may want to consider getting a lawyer to assist you with this appeal process.

If you choose not to appeal, or are unsuccessful in appealing the immediate suspension, you cannot drive until your court case is finalised. However, any time spent off the road will be credited towards any licence suspension you receive at the end of your case.

If you drive during this period of suspension and are caught, you can be charged with another criminal offence “driving whilst suspended”. These charges can carry maximum penalties of large fines, further licence suspension and even jail.