Charged with Drug Driving in Victoria: What Happens Next?

Table of Contents

1. The direct answer
2. What counts as drug driving in Victoria
3. Presence offences
4. Impairment offences
5. Driving under the influence
6. Combined alcohol and drug offences
7. Refusal and non-cooperation offences
8. Prescribed illicit drugs
9. Roadside drug testing
10. Laboratory confirmation
11. What happens immediately after a positive roadside result
12. Infringement and court pathways
13. Objecting to a drug-driving infringement
14. Obtaining the police and laboratory material
15. Prescription medication
16. Medicinal cannabis
17. Drug impairment assessments and blood testing
18. Testing after a crash
19. Refusing tests, assessments and accompanying police
20. Licence suspension, cancellation and disqualification
21. Demerit points, Behaviour Change Programs and Licence Eligibility Orders
22. Professional drivers, employment and insurance
23. First, subsequent and prior-history matters
24. Court procedure for drug-driving matters
25. Evidence and factual disputes
26. Sentencing material
27. Available outcomes — carefully qualified
28. Appeals and review rights
29. Common mistakes
30. Offence comparison table
31. Testing-process table
32. Document checklist
33. Practical action plan
34. Worked examples
35. When urgent legal advice is required
36. Conclusion
37. Frequently Asked Questions

What counts as drug driving in Victoria

"Drug driving" is a category, not a single offence. The Road Safety Act 1986 (Vic) and its regulations create several distinct offences that fall under that broad description. The principal categories are:

• driving (or being in charge of a motor vehicle) with a prescribed illicit drug present in oral fluid or blood — a presence offence;
• driving while impaired by a drug — an impairment offence;
• driving under the influence of an intoxicating substance — a more serious impairment-based offence;
• combined alcohol and drug conduct — separate offences that combine elements of drink driving and drug driving;
• refusing to undergo oral-fluid testing, blood or urine sampling, or an impairment assessment — distinct refusal offences with their own consequences; and
• related offences such as failing to remain with, or accompany, a police officer for the purpose of testing or assessment.

The elements of each offence differ. The evidence required differs. The pathway through infringement or court differs. The licence consequences differ. Treating every drug-driving matter as a uniform offence is the single most common mistake made by drivers — and by people advising drivers informally. The offence actually charged should be identified from the infringement notice, charge sheet or summons before any further decision is made.

Presence offences

The prescribed-illicit-drug limbs of s 49(1) of the Road Safety Act 1986 (Vic) address different fact-patterns and different sample types, and they do not share identical elements:

• s 49(1)(bb) — a person drives, or is in charge of, a motor vehicle while the prescribed concentration of drugs or more of any prescribed illicit drug is present in the person's blood or oral fluid;
• s 49(1)(bc) — the direct combined-concentration offence: a person drives, or is in charge of, a motor vehicle while both the prescribed concentration of alcohol or more is present in the person's blood or breath and the prescribed concentration of drugs or more of any prescribed illicit drug is present in the person's blood or oral fluid;
• s 49(1)(h) — a person furnishes an oral-fluid sample under s 55E within 3 hours after driving or being in charge of a motor vehicle, and analysis by an approved analyst under s 57B finds a prescribed illicit drug, the presence not being due solely to consumption after driving or being in charge;
• s 49(1)(i) — a blood sample is taken under the specified provisions within 3 hours after driving or being in charge, and analysis by a properly qualified analyst under s 57 finds a prescribed illicit drug, again subject to the requirement that the presence is not due solely to consumption after driving or being in charge; and
• s 49(1)(j) — the analysed blood-sample combined alcohol-and-prescribed-illicit-drug proof limb: a blood sample taken within 3 hours after driving or being in charge, analysed within 12 months of being taken, showing both alcohol at or above the prescribed concentration and a prescribed illicit drug, and subject to the same no-post-driving-consumption condition. It is not a simple prescribed-illicit-drug presence offence.

"Prescribed illicit drug" is defined by s 3(1) of the Act and currently means methylamphetamine, MDMA (3,4-methylenedioxy-N-methylamphetamine) and delta-9-tetrahydrocannabinol (THC). The prosecution does not need to prove actual impairment for a presence limb; it must prove the elements of the specific limb charged. For s 49(1)(h), (i) and (j) that includes the 3-hour sample-timing requirement, the applicable analyst provisions (s 57 for blood; s 57B for oral fluid), and the statutory requirement that any prescribed-illicit-drug presence is not due solely to consumption after driving or being in charge. Section 49(1)(j) additionally requires that the blood sample be analysed within 12 months of being taken. The precise limb charged and the exact conditions engaged must be checked in every case.

Presence limbs are the offences most commonly dealt with through the traffic-infringement pathway for first-time matters, but not universally. Which limb is charged, and which sample and analysis it depends on, must be identified from the notice or charge before any plea decision.

Impairment offences

The drug-impairment offence appears in s 49(1)(ba) of the Road Safety Act 1986 (Vic). The prosecution must prove that the driver was, by reason of a drug, impaired in the ability to drive properly. The evidence ordinarily comprises the observations of police, the outcome of a drug impairment assessment conducted by an authorised member of police, and (where required) the result of blood or urine analysis. The drug need not be a prescribed illicit drug — a prescription medication can support an impairment charge where it has affected the driver's capacity to drive properly.

Driving under the influence

Driving a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the vehicle is an offence under s 49(1)(a) of the Road Safety Act 1986 (Vic). It is the most serious of the impairment-based offences and carries higher maximum penalties and longer mandatory licence disqualification than the s 49(1)(ba) impairment offence. The prosecution ordinarily relies on police observations, the drug impairment assessment and any blood or urine analysis.

Combined alcohol and drug offences

Combined alcohol and drug offences address conduct involving both substances. They are not a substitute for drink driving — separate drink-driving offences deal with alcohol-only conduct, including BAC offences, the alcohol interlock framework and the specific licence consequences of drink driving. Where a matter involves alcohol as well as drugs, both categories must be analysed separately and the interaction of the consequences considered.

Refusal and non-cooperation offences

Section 49(1) of the Road Safety Act 1986 (Vic) contains a number of distinct refusal and non-cooperation limbs (including but not limited to paragraphs (e), (ea), (ea1), (eb), (f) and (g)); the provisions address different failures — for example, refusing to undergo a preliminary oral-fluid test, refusing to provide a further sample for analysis, refusing to undergo a drug impairment assessment, refusing a required blood or urine sample, and failing to accompany or remain with police for those purposes. The limbs are not interchangeable and do not map uniformly onto every refusal in every fact-pattern.

Each limb is a distinct offence with its own elements, maximum penalty and s 50 minimum licence disqualification; refusal is generally treated more seriously than the equivalent presence offence, but the precise penalty and s 50 minimum turn on the limb actually charged and must be checked against the current authorised Act. Refusal is not evidence that a drug was present, and it is not a strategic alternative to testing.

Prescribed illicit drugs

"Prescribed illicit drug" is defined by s 3(1) of the Road Safety Act 1986 (Vic) and currently means methylamphetamine, MDMA (3,4-methylenedioxy-N-methylamphetamine) and delta-9-tetrahydrocannabinol (THC). Those three substances are the drugs targeted by roadside oral-fluid testing. Testing technology, sample handling and analytical methods are governed by the Act and its subordinate instruments; current Victoria Police and Transport Victoria material should be checked rather than assumed.

Delta-9-THC and cannabis. THC is detectable by the standard roadside device. It is the constituent of cannabis (and of many medicinal-cannabis products) that can give rise to a presence charge. Cannabidiol (CBD) is not, itself, a prescribed illicit drug under s 3(1); a product that genuinely contains no THC cannot itself produce a THC-presence result, but product composition and contamination vary and documentation of what was actually consumed matters.

Methylamphetamine and MDMA. Both are commonly detected by roadside oral-fluid testing. Detection times vary substantially between individuals and with dose, frequency of use, hydration, metabolism and other factors.

Methamphetamine and MDMA. Both are commonly detected by roadside oral-fluid testing. Detection times vary substantially between individuals and with dose, frequency of use, hydration, metabolism and other factors.

Other drugs and prescription medications. Many other drugs — including sedatives, opioids, stimulants, antidepressants and others — are not detected by the standard roadside device but may be relevant to an impairment offence or to driving under the influence. The presence or absence of such a drug on the roadside oral-fluid screen says nothing about an impairment allegation.

Roadside drug testing

The preliminary oral-fluid testing power is s 55D of the Road Safety Act 1986 (Vic). A driver may be required to provide a preliminary sample at a roadside checkpoint or during a routine stop; the preliminary device indicates whether a prescribed illicit drug is detected. A positive preliminary result does not, by itself, make out a presence offence — it triggers the subsequent oral-fluid testing and analysis process governed by s 55E, which regulates the further sample provided for approved analysis after a positive preliminary test (or a refusal), including the statutory three-hour and procedural conditions.

The procedural sequence, the testing device used and the records kept by police are technical questions that may be relevant to a later challenge.

Negative, inconclusive and confirmed results have different consequences. A negative preliminary result ordinarily ends the testing process. A positive preliminary result triggers the s 55E process. An inconclusive or anomalous result may trigger further testing or be relied on only with care. The definitive position depends on the approved laboratory analysis.

Laboratory confirmation

Approved laboratory analysis is central to the usual prosecution of an oral-fluid presence offence. The accredited laboratory analyses the sample and issues an analyst's certificate identifying the substance and the level. Under s 57B of the Road Safety Act 1986 (Vic), the certificate is admissible in evidence and, in the absence of contrary evidence, is proof of the matters it states — it is an evidentiary mechanism, not itself an element of the offence, and it is not the only possible mode of proof. Chain of custody, accreditation, calibration, sample handling, methodology and the level reported may all be challenged where relevant. The confirmed analysis (not the roadside indication) is the proper basis for any plea or licence decision.

What happens immediately after a positive roadside result

Two distinct restrictions may operate at this stage and they should not be confused. The first is a short statutory prohibition on driving after testing, which operates under the Road Safety Act 1986 (Vic) without any charge being laid. The second is an immediate licence suspension under Part 6B of the Act: for defined relevant drug or alcohol offences the immediate-suspension regime begins with ss 85 and 85A — typically triggered by the filing of a charge-sheet for such an offence — with other Part 6B provisions (including, where they apply, ss 85F and 85G) governing other triggers and infringement-related circumstances. Not every positive preliminary oral-fluid result produces an immediate suspension; the correct provision, duration and Part 6B review or cancellation mechanism must be identified from the exact notice served.

Depending on the alleged offence and the circumstances, the driver may therefore receive some combination of:

• a written prohibition on driving for the short statutory period following testing;
• a Part 6B immediate licence suspension notice, where the applicable trigger is engaged;
• information about the testing sequence; and
• (later, depending on the analyst's result and police decision) an infringement notice, a charge-sheet, no further action, or a variation or withdrawal of a notice already issued.

Driving contrary to a prohibition or a Part 6B suspension is a separate offence. The position must be confirmed against the actual documents served — not assumed to have lapsed with time.

Infringement and court pathways

Whether an infringement notice or a charge and summons issues depends on the offence, prior history, the circumstances of the testing and the current operating framework. Not every first-time presence matter produces an infringement.

Traffic-infringement notices for drug-driving matters are issued under the Road Safety Act 1986 (Vic) infringement provisions, which incorporate the general enforcement framework of the Infringements Act 2006 (Vic). A notice, where issued, carries a fine, demerit points and a licence-related consequence without a court finding of guilt. Internal review and court election are available only on the grounds, and within the deadlines, applicable to the particular notice.

Charge and summons is used for more serious matters, including refusal, impairment, driving under the influence, combined alcohol and drug offending, repeat offending and presence matters in which the police consider court determination appropriate. The matter proceeds in the Magistrates' Court of Victoria and is governed by the Criminal Procedure Act 2009 (Vic).

Objecting to a drug-driving infringement

The Infringements Act 2006 (Vic) provides for internal review on defined grounds and for election to have the matter heard by a court. Internal review is not a general appeal on the merits — it requires a defined ground (for example, special circumstances or contrary to law) and is supported by evidence. Court election opens up the full court process, with the consequences (and the risks) of court determination.

Each pathway has its own deadlines. Each pathway has its own consequences. Choosing the wrong pathway, or allowing a deadline to lapse, can foreclose options and result in significantly worse outcomes. Independent legal advice should be obtained before objecting, requesting review or electing court.

Obtaining the police and laboratory material

Whether the matter is infringement-based or court-based, the substantive evidence — the laboratory certificate, the police testing record, the secondary-sample documentation, any body-worn camera footage and the police narrative — should be obtained and reviewed. Chain-of-custody records, accreditation records and calibration records may be relevant to a challenge in some cases. The need for independent scientific advice depends on the issues in dispute and should not be assumed in every matter.

Prescription medication

Prescription medication occupies a careful place in the drug-driving framework. For presence offences, the list of prescribed illicit drugs does not generally include ordinary prescription medications; many prescription medications will not give rise to a presence charge. For impairment offences, however, a prescription medication can support a charge where the medication has affected the driver's capacity to drive properly.

A valid prescription is not automatically a defence to an impairment charge. The driver retains medical fitness-to-drive obligations: a person who knows (or should know) that a medication affects their driving should not drive while affected, even if the medication is lawfully prescribed. Prescriptions, dispensing records and treating-practitioner letters should be preserved; informal advice from a prescriber that "you can drive" is not a substitute for legal advice on a charge.

Medicinal cannabis

Medicinal cannabis requires careful offence-specific analysis. Many medicinal-cannabis products contain delta-9-THC, which is a prescribed illicit drug under s 3(1) of the Road Safety Act 1986 (Vic). If THC is present in oral fluid or blood while driving, a presence offence may be made out irrespective of prescription status.

CBD. CBD is not a prescribed illicit drug under s 3(1). A product that genuinely contains no THC cannot itself produce a THC-presence result, but product composition and contamination vary between products and batches. Composition should not be inferred from a marketing label; pharmacy documentation and product records should be preserved and, where the product's composition is contested, may need to be proved.

Section 50(1F) sentencing discretion (effective 1 March 2025). Section 50(1F) of the Road Safety Act 1986 (Vic) provides that, where a person is found guilty of an offence against s 49(1)(bb), (h) or (i) that relates to the presence of a prescribed illicit drug and the person was taking medicinal cannabis in accordance with a valid prescription (and the section's other statutory conditions are met), the mandatory licence cancellation and disqualification under s 50(1E) does not apply — the court may, but is not required to, cancel the driver's licence or permit and disqualify the person from driving. If the court exercises that discretion to cancel and disqualify, the statutory minimum disqualification period continues to apply: not less than 6 months for a first offence, and not less than 12 months for a subsequent offence. Section 50(1F) is a sentencing discretion on defined conditions; it is not a defence to guilt, and it does not apply to impairment offences, driving under the influence, refusal offences or the combined limbs in s 49(1)(bc) or (j).

Why a prescription is not automatically a defence. A medicinal-cannabis prescription does not by itself answer a THC-presence charge. Medicinal-cannabis users should obtain specific advice from their prescriber, consider current Transport Victoria material before driving and preserve the prescription, dispensing history and medical records. Informal "you're fine to drive" advice should not be relied on.

Drug impairment assessments and blood testing

For impairment matters, police may conduct a structured drug impairment assessment at a police station. The assessment ordinarily includes a series of observations and tests conducted by trained police. Where indicated, a blood or urine sample may be required. The procedure, the records kept and the way the evidence is presented at court are technical questions that are commonly disputed in contested matters.

Testing after a crash

Two distinct regimes need to be separated. Police may require samples from a driver under the general provisions of the Road Safety Act 1986 (Vic) — for example, under ss 55, 55B, 55BA and 55E — where the statutory triggers are engaged (typically after a direction to accompany police for further testing). Refusal or failure liability turns on the exact provision and subsection engaged.

Separately, s 56 of the Act imposes duties on the registered medical practitioner or approved health professional treating a driver who has, in defined accident-related circumstances, attended or been admitted to hospital — subject to the section's detailed age, treatment, timing and exception provisions. Section 56 is not a general obligation on every driver who attends hospital after every incident, and the consequences of non-compliance depend on the exact requirement engaged. Hospital records, ambulance records, crash records and police paperwork should all be preserved because they define which regime and which subsection applies.

Refusing tests, assessments and accompanying police

Refusal offences include:

• refusing to provide a preliminary oral-fluid sample;
• refusing to provide a secondary oral-fluid sample;
• refusing to undergo a drug impairment assessment;
• refusing to provide a blood or urine sample where required;
• refusing to accompany, or remain with, police for the purpose of testing or assessment.

Each refusal offence is governed by the legislation and carries its own consequences. Refusal is generally treated more seriously than the underlying presence or impairment offence and ordinarily carries higher licence consequences. The decisions made at the roadside are therefore highly consequential — the right to remain silent does not extend to refusing lawful testing directions in this context.

Licence suspension, cancellation and disqualification

Licence consequences sit at the centre of any drug-driving matter. They may arise:

• through the short statutory prohibition on driving following testing, and separately through a Part 6B immediate licence suspension where the applicable trigger under the Road Safety Act 1986 (Vic) is engaged;
• administratively through licence suspension or cancellation imposed by Transport Victoria following an infringement;
• as mandatory court orders following a finding of guilt for certain offences;
• as discretionary court orders in other categories.

The terms "suspension", "cancellation" and "disqualification" are not interchangeable. Their legal consequences differ. Independent advice should be obtained before assuming that resolving the fine or charge will also resolve the licence position.

Demerit points, Behaviour Change Programs and Licence Eligibility Orders

Demerit points. Drug-driving offences ordinarily carry demerit points in addition to the fine and licence consequences. Accumulation of demerit points carries separate consequences.

Behaviour Change Program. A Behaviour Change Program (the successor framework to the former drink-drive/drug-drive education programs) currently applies in defined drug-driving categories as part of licence reinstatement. The applicable program, the timing, the cost and the practical effect on the reinstatement timeline depend on the offence and on current VicRoads and Transport Victoria requirements.

Licence Eligibility Orders. Where licence reinstatement after a longer period of cancellation requires a court order, a Licence Eligibility Order may be sought in the Magistrates' Court. The application is technical, requires supporting evidence and is determined against statutory criteria.

Professional drivers, employment and insurance

Professional drivers (including heavy-vehicle, public passenger, taxi, rideshare and certain commercial licensees) face additional consequences. Some categories of driver are subject to a zero presence requirement. Employment consequences — termination, suspension, redeployment — can arise independently of the court outcome and may be governed by an employment contract, workplace policy or industry regulation. Insurance consequences (refusal of cover, exclusion clauses, premium consequences) may arise where the loss occurred in circumstances connected to the offence.

First, subsequent and prior-history matters

Prior drink-driving and drug-driving history is highly relevant. A "subsequent" offence ordinarily carries higher mandatory licence consequences and higher available penalties; the same factual matter may attract very different consequences depending on prior history. The presence of an earlier infringement (rather than a court conviction) may still be relevant. Prior history should be confirmed against the current licence record before plea decisions are made.

Court procedure for drug-driving matters

Drug-driving matters that proceed by charge and summons are dealt with in the Magistrates' Court of Victoria. The general court process — first mentions, summary case conferences, pleas, contest mentions, summary hearings, sentencing and appeals — is explained in the cornerstone article on going to the Magistrates' Court for a criminal or traffic matter in Victoria. This article addresses only the issues that arise specifically in a drug-driving matter.

Common drug-driving-specific issues include:

• the form and admissibility of the laboratory certificate;
• the testing sequence and the chain of custody for the s 55E evidentiary oral-fluid sample or the blood sample;
• identification of the alleged drug and the level reported;
• the form and content of the police drug impairment assessment, where applicable;
• the prescription history and dispensing records, where relevant;
• the precise offence charged and any negotiation about substituting a less serious offence on agreed facts;
• mandatory licence consequences and any limited court discretion concerning them.

Diversion under s 59 of the Criminal Procedure Act 2009 (Vic) is not foreclosed as a matter of law by the mandatory licence consequences in s 50 of the Road Safety Act 1986 (Vic): s 50 consequences attach on conviction or finding of guilt, whereas a successful diversion concludes without such an outcome. Whether diversion is legally available on a particular charge depends on scheme scope (some offences with a minimum or fixed sentence or penalty fall outside s 59) and, where available, on acknowledgment, prosecution consent and the court's assessment. As a matter of practice, drug-driving offence seriousness, prior history and prosecution policy make diversion uncommon for many drug-driving matters — it must be analysed on the specific charge and should neither be promised nor categorically excluded. The general framework is explained in diversion eligibility in Victoria.

Evidence and factual disputes

Common evidentiary issues in contested drug-driving matters include:

• identification of the driver;
• the lawfulness of the testing direction;
• the procedure followed at the roadside and at any subsequent station attendance;
• the integrity of the evidentiary sample (the s 55E oral-fluid sample or the blood sample) and its chain of custody to the laboratory;
• the laboratory's accreditation, methodology, calibration and reporting;
• the substance identified and the level reported;
• (for impairment offences) the structured impairment assessment, the police observations and any blood result;
• the proper form and admissibility of statements, body-worn camera and certificates.

If police want to question a driver about the circumstances, that is a separate decision that should be made carefully — the general framework for police interviews is set out in the article on what to do when police want to interview you. The right to silence in interview does not extend to refusing lawful testing directions, which is a separate offence.

Sentencing material

Where a plea of guilty is to be entered, sentencing material should be prepared early and accurately. The material commonly relevant in a drug-driving matter includes:

• carefully drafted character references that are factually accurate and avoid legal submissions;
• medical or psychological reports addressing relevant background or current condition;
• treatment and rehabilitation evidence, including evidence of engagement with substance-use treatment where relevant;
• employment and financial material, including evidence of licence impact in traffic matters;
• evidence of caring and family responsibilities;
• compliance with bail and any interim restrictions;
• prescription evidence and treating-practitioner correspondence where relevant.

Material should be honest, complete, internally consistent and consistent with the agreed facts. Material that overstates or misrepresents the position is identified rapidly and ordinarily damages the plea.

Available outcomes — carefully qualified

The available outcomes depend on the offence, the legislation and the circumstances. They include — at the most general level — withdrawal of the charge or infringement, no further action, a non-conviction outcome under the Sentencing Act 1991 (Vic) where available, fines, community correction orders, and (in the most serious cases) imprisonment. Diversion is available only in defined cases. Whether a conviction is recorded depends on the offence and the order made and is not guaranteed in either direction.

This article does not promise withdrawal, dismissal, non-conviction or any particular outcome. The consequences of any plea or sentence — including the licence consequences and any program requirement — should be confirmed before the plea is entered.

Appeals and review rights

An appeal from a sentence or a finding of guilt of the Magistrates' Court to the County Court is governed by Part 6.1 of the Criminal Procedure Act 2009 (Vic). A notice of appeal ordinarily must be filed within 28 days of the order appealed from.

Filing an appeal does not, by itself, permit continued driving. Section 264 of the Criminal Procedure Act 2009 (Vic) may operate to stay a sentence in the circumstances it addresses, but s 29(2) of the Road Safety Act 1986 (Vic) provides that the filing of a notice of appeal does not stay a Magistrates' Court order cancelling, suspending, varying or disqualifying a driver licence; the court that made the order may grant a stay on application. A general sentence stay is not, and should not be presented as, permission to drive.

The criminal-appeal pathway is distinct from a challenge to a Part 6B immediate licence suspension, which follows the Part 6B provisions of the Road Safety Act 1986 (Vic), and from internal review and court election in respect of a traffic-infringement notice, which run under the provisions applicable to that notice (drawing on the general enforcement framework of the Infringements Act 2006 (Vic)). Each pathway has its own deadline and its own grounds; the correct pathway should be confirmed promptly.

Common mistakes

• treating the preliminary roadside result as the final result;
• driving in breach of a notice not to drive;
• assuming a prescription automatically answers a charge;
• assuming a medicinal-cannabis prescription is a complete defence;
• confusing internal review with court election under the Infringements Act 2006 (Vic);
• missing the objection or appeal deadline;
• refusing testing in the belief that it is strategically preferable;
• entering a plea before obtaining and reviewing the laboratory certificate;
• commissioning an expensive expert toxicology report without legal advice on its usefulness;
• ignoring the licence consequences while focusing only on the fine.

Offence comparison table

The following table is general and qualified. Specific elements, evidence and consequences depend on the legislation as it applies to the particular offence and circumstances.

Testing-process table

Document checklist

• infringement notice;
• charge sheet;
• summons;
• police testing documents;
• laboratory certificate or report;
• evidentiary sample documentation (s 55E oral-fluid or blood);
• notice not to drive;
• licence suspension or cancellation notice;
• VicRoads or Transport Victoria correspondence;
• licence history;
• prescription;
• pharmacy/dispensing records;
• treating-practitioner letter;
• medication packaging where retained;
• medical history relevant to impairment;
• any independent toxicology or scientific material;
• body-worn camera footage;
• dashcam footage;
• crash records, ambulance and hospital records;
• witness details;
• employment-driving requirements and employer correspondence;
• prior court or infringement records;
• Behaviour Change Program documents (existing or proposed).

Practical action plan

1. identify the exact notice, charge and alleged drug;
2. comply with every immediate direction not to drive and any interim licence restriction;
3. record the testing sequence and timing while it is fresh;
4. preserve every police, testing and licence document;
5. obtain the laboratory result and the police testing material;
6. obtain prescription, dispensing and treating-practitioner records where relevant;
7. identify whether the matter is on the infringement or court pathway;
8. check every objection, internal-review and court deadline;
9. identify the licence, work and insurance consequences and quantify them;
10. obtain independent legal advice before objecting, electing court or pleading;
11. prepare scientific, medical or sentencing material where justified;
12. comply with any Behaviour Change Program or licence-reinstatement requirement on time.

Worked examples

The following examples are illustrative only. They are not decided cases, do not predict outcomes and are not legal advice for any actual matter.

Example 1 — Preliminary THC positive, laboratory confirmed. A driver returns a positive preliminary oral-fluid result for THC and provides an evidentiary oral-fluid sample under s 55E. Several weeks later the laboratory confirms THC and an infringement notice is issued. The driver reviews the laboratory certificate before deciding whether to pay, seek review or elect court.

Example 2 — First-time presence, infringement pathway. A fully licensed driver with no prior drug-driving history receives an infringement notice for a confirmed presence offence. Internal review and court election are considered against current criteria and deadlines.

Example 3 — Objection to infringement, court determination. The driver elects to have the matter heard by a court. The matter proceeds in the Magistrates' Court. The Court considers the laboratory certificate, the testing record and the driver's circumstances.

Example 4 — Medicinal-cannabis patient with current THC prescription. A driver with a current THC prescription returns a positive oral-fluid result for THC. The prescription, dispensing records and treating-practitioner letter are obtained. Whether any limited court discretion concerning licence cancellation is available, and whether impairment is alleged, are analysed separately.

Example 5 — CBD-only medication, no THC allegation. A driver using a CBD-only product returns a negative oral-fluid result for THC. No presence allegation arises from the medication; documentation of product composition is preserved.

Example 6 — Prescription sedative and impairment allegation. A driver taking a lawfully prescribed sedative is stopped after observation of erratic driving. A drug impairment assessment is conducted. An impairment offence is alleged. The prescription does not by itself answer the impairment charge.

Example 7 — Refusal of oral-fluid sample. A driver refuses to provide a preliminary oral-fluid sample. A refusal offence is charged. Refusal carries higher licence consequences than the presence offence the driver was trying to avoid.

Example 8 — Combined alcohol and drug allegation. A driver returns a positive breath test and a positive oral-fluid test. Combined drink and drug offences are analysed alongside any interlock and program consequences. The drink-driving framework is considered separately under the drink-driving article.

Example 9 — Professional driver, employment consequences. A heavy-vehicle driver receives a presence infringement. Employment and licensing consequences are analysed alongside the underlying offence and the driver's obligations under workplace policy and industry regulation.

Example 10 — Repeat offending and longer licence consequences. A driver with prior drug-driving history is charged with a further offence. Subsequent-offence consequences and any Behaviour Change Program and Licence Eligibility Order requirements are considered as part of the plea and reinstatement strategy.

When urgent legal advice is required

Urgent legal advice should be obtained where:

• a notice not to drive, charge sheet, summons or infringement has been served with a near court date or objection deadline;
• the laboratory result is disputed or borderline;
• licence consequences are imminent;
• the matter involves refusal, impairment or driving under the influence;
• the matter is a combined alcohol and drug allegation;
• the driver holds a professional or commercial licence;
• medicinal cannabis or other prescription medication is in play;
• the matter involves a crash, hospitalisation or third-party injury;
• an appeal or review period is close to expiring; or
• a charge negotiation has been offered that the driver does not fully understand.

Where representation is required, our criminal and traffic law team can assist.