Drug Driving & Driving Under the Influence (DUI) – Saliva & Blood Test

If you have been caught drug driving in Victoria, it is likely that you will be required to attend court. The court you will have to attend will be the Magistrates Court closest to where the offence occurred (or closest to where you live). 

Most likely, you will have received a summons from the police and will have a pending court date. This date is called the ‘first mention’ and is the first listing of your matter where you can attend court and tell the Magistrate that you want to plead guilty, not guilty, or that you need more time (an ‘adjournment’) to get your case prepared.

Unlike drink driving, you don’t get charged with drug driving by being over a certain level. The way that the law is written means that any drugs in your system can breach the law. This includes illegal drugs such as amphetamines, MDMA and cannabis, as well as some prescription drugs.

If police suspect that a driver is under the influence of illicit drugs, they are permitted to request a sample of oral fluid to confirm their suspicion. If a proper request is made to provide a saliva sample, it is an offence to refuse.

There aren’t many defences to driving with drugs in your system, except perhaps that you were not in fact impaired by a drug, or that you took a prescription drug in the terms prescribed by your doctor.

There are three types of charges that deal with driving under the influence of drugs in Victoria:

  • The first is what many refer to as a ‘DUI’ charge (section 49(1)(a) of the Road Safety Act). In order to prove this charge, the police must show that you were under the influence of drugs to such an extent as to be incapable of having proper control of your vehicle. This is a very high standard and can be difficult to prove.
  • The second is what many refer to as ‘driving whilst impaired by a drug’ (s49(1)(ba) of the Road Safety Act). Police must show that you had illicit drugs in your system at the time of driving. They usually prove this charge by taking a saliva /blood / urine sample from you and also by taking you through some routine co-ordination tests whilst being video taped.
  • The third consists of a few different sections of the law, but basically can be summarised as “driving with illicit drug” (ss49(1)(bb), (h) and (i) of the Road Safety Act). Police usually prove these charges by taking a saliva / blood / urine sample from you and if there is any trace of drugs in your system, you can be found guilty. Police do not have to prove that your driving was impaired in any way.

You may find on your charge sheet that the police have charged you with both the s49(1)(ba) “driving whilst impaired” and s49(1)(bb), (h) or (i) “driving with illicit drug” charges. These charges generally cover the same conduct and you will generally find that police will withdraw one charge if you plead guilty to the other.

Police can also immediately suspend your licence at any time after the filing of the charge-sheet at court which means that you are suspended from driving until the charge has been determined at court (known as a ‘section 51’ notice). 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. 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.