Information Centre · Criminal & Traffic Law
Charged with Drug Driving in Victoria: What Happens Next?
A drug-driving allegation in Victoria can move from a roadside test, to a laboratory result, to an infringement or a court charge, with licence consequences attaching at several points along the way. The right response depends on the alleged offence, the drug involved, the testing sequence, prior history and (where relevant) prescription and medicinal-cannabis evidence — not on assumptions imported from drink driving or from interstate.
Key points
- Identify the exact offence, the alleged drug and every document issued — infringement notice, charge sheet, summons, notice not to drive, licence-suspension notice and any laboratory paperwork — before making any plea, objection or licence decision.
- Treat the preliminary roadside oral-fluid result as a screening result only; the final allegation depends on laboratory confirmation of the secondary sample and the offence that the prosecution ultimately runs.
- Comply immediately with every direction not to drive and any interim licence consequence — driving in breach of those directions is a separate, more serious offence and almost always damages the substantive matter.
- Preserve prescriptions, dispensing records, treating-practitioner letters, medication packaging, body-worn camera and dashcam footage and any record of the testing sequence — evidence rarely improves with time and is often decisive on impairment, prescription and medicinal-cannabis issues.
- Understand that infringement, internal-review, court-objection, plea, sentencing and licence-reinstatement pathways are distinct, run on different deadlines and produce different consequences — assumptions imported from drink-driving, interstate or earlier law are usually wrong.
- Obtain independent legal advice before objecting to an infringement, electing court, entering a plea, signing a statement, accepting agreed facts or consenting to licence consequences — once a deadline lapses or a plea is entered the options narrow rapidly.
Table of Contents
- The direct answer
- What counts as drug driving in Victoria
- Presence offences
- Impairment offences
- Driving under the influence
- Combined alcohol and drug offences
- Refusal and non-cooperation offences
- Prescribed illicit drugs
- Roadside drug testing
- Laboratory confirmation
- What happens immediately after a positive roadside result
- Infringement and court pathways
- Objecting to a drug-driving infringement
- Obtaining the police and laboratory material
- Prescription medication
- Medicinal cannabis
- Drug impairment assessments and blood testing
- Testing after a crash
- Refusing tests, assessments and accompanying police
- Licence suspension, cancellation and disqualification
- Demerit points, Behaviour Change Programs and Licence Eligibility Orders
- Professional drivers, employment and insurance
- First, subsequent and prior-history matters
- Court procedure for drug-driving matters
- Evidence and factual disputes
- Sentencing material
- Available outcomes — carefully qualified
- Appeals and review rights
- Common mistakes
- Offence comparison table
- Testing-process table
- Document checklist
- Practical action plan
- Worked examples
- When urgent legal advice is required
- Conclusion
- Frequently Asked Questions
The direct answer
A drug-driving allegation in Victoria does not become a final allegation at the roadside. A preliminary oral-fluid result is a screening result; the final position depends on laboratory confirmation of the secondary sample, the offence the prosecution ultimately runs and the pathway police choose between infringement and charge.
Victoria runs distinct offences for the presence of a prescribed illicit drug, for drug-related impairment, for driving under the influence, for refusal of testing or assessment and for combined alcohol and drug conduct. Some first-time presence matters may be dealt with by infringement; others proceed by charge and summons. Licence consequences can arise separately from the fine or sentence and operate on their own deadlines.
Prescription medication and medicinal cannabis require careful offence-specific analysis. A valid prescription does not automatically answer a prescribed-drug presence charge; a CBD-only product is not the same as a THC-containing product; and a limited reform concerning licence consequences for some medicinal-cannabis patients is conditional and factually contingent. The infringement, laboratory report, police paperwork and licence history should all be reviewed before any objection, plea or licence decision is made.
This article is reviewed by Julian McIntyre, Associate. It sits as the offence-specific Parke Lawyers resource on drug driving and is intended to be read together with the cornerstone article on going to the Magistrates' Court for a criminal or traffic matter, the resource on drink driving in Victoria, the guide on what to do when police want to interview you and the resource on diversion eligibility in Victoria. It is general information only, does not constitute legal advice, does not tell any reader how to plead and does not promise any particular outcome. Where representation is required, our criminal and traffic law team can assist.
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
A presence offence is committed where the driver drives (or is in charge of a motor vehicle) with a prescribed illicit drug present in oral fluid or blood at the relevant level. The prosecution does not have to prove actual impairment, that the driver felt affected, that the driver was driving badly, or that there was any incident. The drug, the sample and the proof requirements are defined by the legislation.
Presence offences are the offences most commonly dealt with through the infringement pathway for first-time matters. They are also the offences most commonly misunderstood. A presence offence does not require visible impairment, does not require erratic driving and does not require a particular "reading" that mirrors a BAC; it requires the prescribed drug to be present in the prescribed sample as confirmed by the approved laboratory process.
Impairment offences
Drug impairment offences are different. The prosecution must prove that the driver was, by reason of a drug, impaired in their ability to drive properly. The evidence ordinarily comprises the observations of police, the outcome of a structured drug impairment assessment conducted by trained police and (where required) the result of blood or urine analysis. The drug need not be a prescribed illicit drug — many prescription medications can support an impairment charge where they have affected the driver's capacity to drive properly.
Driving under the influence
Driving under the influence of an intoxicating substance is a more serious impairment-based offence. The prosecution must prove that the driver was so affected by an intoxicating substance (which may be a drug, a combination of drugs, or a combination of drug and alcohol) that they were incapable of having proper control of the vehicle. The penalties available are ordinarily higher than for a simple impairment offence.
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
Refusing a lawful police direction to undergo oral-fluid testing, a drug impairment assessment, or a blood or urine sample is a separate offence. So is failing to accompany, or remain with, police for the purpose of testing or assessment. These offences are treated seriously and ordinarily carry higher licence consequences than presence offences. Refusal is not a strategic alternative to testing.
Prescribed illicit drugs
The drugs prescribed for roadside oral-fluid testing commonly include THC (the active component of cannabis), methamphetamine and MDMA. The list of prescribed drugs, the testing technology and the levels at which the test indicates a positive result are governed by the Road Safety Act 1986 (Vic) and the regulations made under it, and can change. Current Victoria Police and Transport Victoria material should be checked rather than assumed.
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 offence. CBD is not THC and does not, by itself, give rise to a presence offence.
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
Roadside drug testing in Victoria currently proceeds through an oral-fluid screening process. The driver is stopped (commonly at a booze-bus or roadside checkpoint, but also during a routine stop) and asked to provide an oral-fluid sample. The preliminary device indicates whether a prescribed drug is detected.
If the preliminary device is positive, the driver is ordinarily asked to provide a secondary oral-fluid sample. That secondary sample is the sample sent to the laboratory for confirmation. 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 secondary sample. An inconclusive or anomalous result may trigger further testing or be relied on only with care. The final legal position depends on the laboratory analysis.
Laboratory confirmation
Laboratory analysis is the central piece of evidence in most presence matters. The accredited laboratory analyses the secondary sample and issues a certificate identifying the substance and the level. The certificate is ordinarily admissible at court subject to procedural requirements and to challenges that may be available — chain of custody, accreditation, calibration, sample handling, methodology and the level reported. The laboratory result, not the roadside result, is the proper basis for any plea or licence decision.
What happens immediately after a positive roadside result
Following a positive roadside oral-fluid result and the secondary sample, the driver is ordinarily issued with:
- a written notice not to drive for a defined period;
- information about the testing sequence;
- (in some cases) an immediate licence suspension notice depending on the alleged offence and the circumstances; and
- (later, once the laboratory result is available) either an infringement notice, a charge sheet or no further action.
Driving in breach of the direction not to drive is a separate offence. The driver should not assume that the right to drive resumes simply because some time has passed; the position must be confirmed against the documents and (where unclear) with current advice.
Infringement and court pathways
Once the laboratory result is available, the matter proceeds either through the infringement pathway or through charge and summons to the Magistrates' Court. The pathway depends on the offence, prior history, the circumstances of the testing and the current operating framework.
Infringement is an administrative pathway under the Infringements Act 2006 (Vic), commonly used for first-time presence offences. It carries a fine, demerit points and a licence-related consequence without a court determination of guilt. Court election and internal review are available as separate pathways with their own deadlines.
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 is a distinct area requiring careful offence-specific analysis. Many medicinal-cannabis products contain THC. THC is a prescribed illicit drug for the purposes of Victorian road-safety law. The presence of THC in oral fluid or blood may give rise to a presence offence even where the cannabis was lawfully prescribed, lawfully dispensed and consumed in accordance with the prescription.
CBD-only products. CBD is not a prescribed illicit drug. CBD-only medication does not, by itself, give rise to a presence offence. The documentation should confirm that the product is CBD-only — some products marketed as CBD nevertheless contain THC.
Limited court discretion concerning licence cancellation. Recent Victorian reforms have introduced a limited discretion concerning licence cancellation for some medicinal-cannabis patients in defined circumstances. The discretion is limited, conditional, factually contingent and not a complete defence. Whether the discretion is engaged in any particular matter depends on the offence, the statutory conditions, the prescription evidence and the factual circumstances. Impairment remains separately relevant — the discretion concerning presence does not assist where impairment is alleged.
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
After a crash, statutory testing requirements may apply. In defined circumstances, blood may be taken at hospital for analysis. Insurance and licensing consequences may arise independently of any criminal or traffic charge. Hospital records, ambulance records, crash records and police paperwork should all be preserved.
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:
- immediately at the roadside through a notice not to drive;
- 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 secondary 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 the Criminal Procedure Act 2009 (Vic) may be available for some matters where the statutory requirements are met, prosecution consent is given and the Court considers the accused suitable. Diversion is not routinely available in drug-driving matters and should not be assumed. The general framework is explained in the article on 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 secondary 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
Appeals from a Magistrates' Court order are governed by the Criminal Procedure Act 2009 (Vic) and ordinarily require filing within 28 days of the order. Appeals from infringement decisions and from administrative licence consequences run under their own frameworks and have their own deadlines. The correct review path should be confirmed promptly after the order or decision.
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.
| Offence type | What the prosecution generally must establish | Common evidence | Usual pathway | Potential consequence categories |
|---|---|---|---|---|
| Prescribed-drug presence | Driving (or in charge) with prescribed drug present in oral fluid/blood | Roadside testing record; secondary sample; laboratory certificate | Infringement for first offences; charge and summons in other cases | Fine, demerit points, licence-related consequence; conviction in some cases |
| Drug impairment | Driving while impaired by a drug | Police observations; drug impairment assessment; blood result (where required) | Charge and summons | Fine, conviction, longer licence consequences, possible community order |
| Driving under the influence | Driving so affected by intoxicating substance as to be incapable of proper control | Police observations; assessment; blood result; expert evidence | Charge and summons | Higher fines, conviction, longer licence consequences, community order or imprisonment in serious cases |
| Combined alcohol and drug offending | As for both categories, in combination | Breath and oral-fluid testing; laboratory results; observations | Charge and summons | Combined fine, conviction, longer licence consequences, possible interlock and program requirements |
| Refusal — oral-fluid test | Refusal of lawful direction to provide oral fluid | Police notes; body-worn camera; testing record | Charge and summons | Higher fine, conviction, ordinarily longer licence consequence than presence |
| Refusal — impairment assessment | Refusal of lawful direction to undergo assessment | Police notes; assessment record; body-worn camera | Charge and summons | Higher fine, conviction, longer licence consequence |
| Refusal — blood or urine sample | Refusal of lawful direction where requirement engaged | Police notes; medical/hospital records; sampling documentation | Charge and summons | Higher fine, conviction, longer licence consequence |
| Medicinal-cannabis THC presence | Presence of THC in oral fluid/blood while driving | Laboratory certificate; prescription and dispensing records; treating-practitioner letter | Infringement or charge and summons depending on circumstances | Fine, demerit points, licence consequence; limited court discretion in defined cases |
Testing-process table
| Stage | What occurs | Document or evidence | Important qualification |
|---|---|---|---|
| Roadside screening | Preliminary oral-fluid test | Police testing record | Preliminary result is not the final laboratory confirmation |
| Secondary sample | Further oral-fluid sample | Sample and police paperwork | Procedure depends on the statutory pathway |
| Laboratory analysis | Approved laboratory testing | Certificate or report | Confirm exact result and alleged prescribed drug |
| Infringement or charge | Police determine pathway | Infringement, charge sheet or summons | Not every matter follows the same path |
| Review or objection | Driver challenges or elects court process | Objection, application or court documents | Deadlines and consequences must be checked |
| Court determination | Evidence and legal issues determined | Brief, certificates, submissions | Outcome depends on offence, history and evidence |
Document checklist
- infringement notice;
- charge sheet;
- summons;
- police testing documents;
- laboratory certificate or report;
- secondary sample documentation;
- 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
- identify the exact notice, charge and alleged drug;
- comply with every immediate direction not to drive and any interim licence restriction;
- record the testing sequence and timing while it is fresh;
- preserve every police, testing and licence document;
- obtain the laboratory result and the police testing material;
- obtain prescription, dispensing and treating-practitioner records where relevant;
- identify whether the matter is on the infringement or court pathway;
- check every objection, internal-review and court deadline;
- identify the licence, work and insurance consequences and quantify them;
- obtain independent legal advice before objecting, electing court or pleading;
- prepare scientific, medical or sentencing material where justified;
- 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 a secondary sample. 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.
Conclusion
A drug-driving allegation in Victoria is not one uniform offence — it is a family of distinct offences with distinct elements, distinct evidence and distinct consequences. The preliminary roadside result is a screening result, not a final result. The laboratory certificate, the police paperwork, the licence consequences, the prescription history and (where relevant) the medicinal-cannabis framework all require careful, offence-specific analysis. The pathways through infringement, internal review, court determination, plea, sentencing and licence reinstatement each run on their own deadlines. Independent legal advice obtained early — before any objection, plea or licence decision — is consistently the most useful contribution to a fair and proportionate outcome.
Reviewed by Julian McIntyre.
Frequently Asked Questions
What happens after a positive roadside drug test?
A preliminary positive oral-fluid result at the roadside is ordinarily followed by a secondary oral-fluid sample. That secondary sample is sent to an approved laboratory for confirmation. Pending the laboratory result, police may direct the driver not to drive for a defined period and may seize the secondary sample for analysis. The matter does not become a final allegation until the laboratory has confirmed the prescribed drug in the sample and the police have determined whether to issue an infringement, lay a charge or take no further action. The driver should record the testing sequence and timing, retain every document and obtain advice before responding.
Is the roadside result the final result?
No. The preliminary roadside oral-fluid test is a screening test. It indicates the presence of a prescribed drug at a level the device is calibrated to detect but is not, by itself, the basis on which a court determination is made. The final allegation depends on the laboratory analysis of the secondary sample and the offence the prosecution ultimately runs.
What drugs are tested for at the roadside?
Victoria Police roadside oral-fluid testing currently screens for the prescribed illicit drugs identified in the Road Safety Act 1986 (Vic) and its regulations — commonly THC (the active component of cannabis), methamphetamine and MDMA. Other drugs, including many prescription medications, are not detected by the standard roadside device but may be relevant to an impairment offence. The specific drugs tested and the testing technology may change; current Victoria Police material should be checked rather than assumed.
How long does laboratory confirmation take?
Laboratory turnaround times vary. It is not unusual for several weeks to pass between the roadside test and the issue of an infringement or summons based on the laboratory result. Pending confirmation, immediate driving directions may still apply.
What if the laboratory result is negative or inconclusive?
If the laboratory does not confirm a prescribed drug in the sample, the prosecution ordinarily cannot make out a presence offence based on that sample. An inconclusive result requires a careful technical assessment. A negative or inconclusive result does not by itself defeat a separate impairment or refusal charge.
Can I drive after a positive roadside test?
Generally no. Police ordinarily issue a written direction not to drive for a defined period after a positive preliminary result. Driving in breach of that direction is a separate offence and is treated seriously. The driver should not assume the right to drive is restored simply because some time has passed.
Will I receive an infringement or a court summons?
Either is possible. Some first-time prescribed-drug presence matters may be dealt with by infringement notice, which carries a fine, demerit points and a licence-related consequence and is processed administratively. Other matters — including refusal, impairment, driving under the influence, combined alcohol and drug offending, more serious circumstances or repeat offending — proceed by charge and summons to the Magistrates' Court. The pathway depends on the alleged offence and police discretion within the statutory framework.
Can I object to a drug-driving infringement?
Yes. The Infringements Act 2006 (Vic) provides mechanisms for review and for electing to have the matter heard by a court. Each pathway has its own deadlines and consequences. Internal review and court election are not interchangeable — choosing the wrong pathway, or letting a deadline lapse, can foreclose options and increase consequences. Independent legal advice should be obtained before objecting.
What happens if I object?
If the matter is referred to court, it proceeds as a criminal or traffic charge in the Magistrates' Court. The prosecution must prove the offence and the laboratory certificate ordinarily becomes a central piece of evidence. Penalties on a court determination can be higher than those attached to the infringement, including a higher fine, conviction and longer licence consequences. Court determination is sometimes the right outcome but should not be assumed to be better.
Can I request an internal review?
Internal review under the Infringements Act 2006 (Vic) is available on defined grounds — for example, special circumstances or contrary-to-law decisions. It is not a general appeal on the merits. The grounds, evidence and time limits should be checked against the current legislation and current Department of Justice and Community Safety guidance before any application is made.
Do I need to attend court?
For matters that proceed by charge and summons, attendance is ordinarily required, particularly where a plea may be entered, sentence may be imposed or bail may be varied. For some routine procedural mentions, a lawyer may be able to appear on the driver's behalf. The position should be confirmed in advance with the lawyer, the prosecution and (if necessary) the Court.
What is a presence offence?
A presence offence is an offence of driving (or being in charge of a vehicle) with a prescribed illicit drug present in oral fluid or blood, irrespective of whether the driver was actually impaired. The prosecution does not have to prove driving behaviour was affected — only that the drug was present in the prescribed sample at the relevant level. The drug, the sample type and the proof requirements are set out in the Road Safety Act 1986 (Vic).
Does police need to prove impairment?
Not for a presence offence. For an impairment offence (or driving under the influence), the prosecution must prove the driver was, by reason of the drug, impaired in their ability to drive properly. The evidence ordinarily includes the observations of police, the result of any drug impairment assessment and (where available) medical or scientific evidence.
What is drug impairment?
Drug impairment generally refers to a state in which the driver's ability to drive properly is affected by a drug. The assessment commonly involves a structured set of observations by trained police, sometimes including a drug impairment assessment at a station, and may be supported by blood or urine analysis. The legal test, the procedural steps and the evidentiary value of each stage are technical and should not be assumed from television or other jurisdictions.
Can prescription medication lead to a charge?
Yes — for impairment offences. Many prescription medications can affect concentration, reaction time and judgment. A driver who is impaired by a prescription medication can be charged with an impairment offence even where the medication was lawfully prescribed and taken in accordance with the prescription. A valid prescription does not, by itself, answer an impairment charge.
Can I drive while prescribed medicinal cannabis?
The answer depends on the product, the active ingredient, the dose, the timing and how the driver is affected. Many medicinal-cannabis products contain THC, which is a prescribed illicit drug for road-safety purposes; presence of THC in the driver's oral fluid or blood may give rise to a presence offence even where the cannabis was lawfully prescribed and consumed. CBD-only products do not contain THC. Medicinal-cannabis users should obtain specific advice from their prescriber and consider current Transport Victoria and Victoria Police material before driving.
Is a medicinal-cannabis prescription a defence?
Not automatically. A valid prescription does not by itself answer a THC-presence charge. Recent Victorian reforms have introduced a limited court discretion concerning licence cancellation for some medicinal-cannabis patients in defined circumstances; that discretion is limited, conditional, factually contingent and not a complete defence. Impairment remains separately relevant. Specific advice is essential before relying on a prescription as a response to a charge.
Can a magistrate allow me to keep my licence?
In limited circumstances and within the statutory framework, the Court may have discretion concerning licence cancellation for some medicinal-cannabis patients. That discretion is not guaranteed, depends on specific statutory conditions and on the factual circumstances, and is distinct from the consequences that attach to impairment offences, refusal offences, repeat offending and matters involving alcohol. Assumptions should not be made about preserving a licence in any particular case.
What is the difference between THC and CBD?
THC (tetrahydrocannabinol) is the principal psychoactive constituent of cannabis and is a prescribed illicit drug for the purposes of Victorian road-safety law — its presence in oral fluid or blood can give rise to a presence offence. CBD (cannabidiol) is a non-psychoactive constituent and is not a prescribed illicit drug; CBD-only medication does not, by itself, give rise to a presence offence. Some products marketed as CBD nevertheless contain THC; the product information and prescription documentation should be checked.
Can I refuse a roadside drug test?
Refusing a lawful police direction to undergo oral-fluid testing is a separate offence and is treated seriously. It is not a strategic alternative to testing. The consequences of refusal can be greater than the consequences of a presence offence, particularly for licence loss.
What are the consequences of refusal?
Refusal offences ordinarily carry significant licence consequences, fines and (depending on the circumstances and prior history) the possibility of more serious orders. The exact consequences depend on the offence charged, prior history and the current legislation, and should be confirmed against current law before any decision is made.
Can police require a blood or urine sample?
In defined circumstances — including after a crash, where breath or oral-fluid testing is not practicable, or where an impairment assessment indicates further analysis is required — police may require a blood or urine sample. Refusing such a requirement may itself be an offence.
What happens after a crash?
After a crash, statutory testing requirements may apply, including blood sampling at hospital in defined circumstances. Insurance and licensing consequences may also arise independently of any criminal or traffic charge. All testing documents, hospital records, crash records and police paperwork should be preserved.
Will I lose my licence?
Many drug-driving outcomes — both infringement and court — involve licence consequences (suspension, cancellation or disqualification). The duration depends on the offence, prior history and the legislation. Some consequences are administrative and operate independently of the court process; some are mandatory court orders; some are discretionary. Independent advice should be obtained before assuming a particular licence outcome.
Are there demerit points?
Drug-driving infringements ordinarily carry demerit points in addition to the fine and licence consequences. The exact number depends on the offence and current legislation. Accumulation of demerit points carries its own consequences for licence status.
Must I complete a Behaviour Change Program?
Behaviour Change Program requirements (formerly the drink-drive/drug-drive education programs) currently apply in some drug-driving categories as part of licence reinstatement. The applicable program, the timing and the cost depend on the offence, the licence consequence and current VicRoads / Transport Victoria requirements. The driver should not assume program requirements without checking current material.
Will I need a Licence Eligibility Order?
Where licence reinstatement after a longer period of cancellation requires a Magistrates' Court order, a Licence Eligibility Order may be sought. The application is technical, requires evidence and is determined against statutory criteria. Independent legal advice should be obtained before applying.
Can charges be negotiated?
Yes — many drug-driving matters that proceed by charge and summons involve some discussion with police informants or prosecutors about charges and the agreed factual basis for any plea. Charge negotiation is not guaranteed, depends on the evidence and prosecution position and should be conducted by a legal representative.
Should I plead guilty?
That is not a decision that should be made on the day of the first mention without legal advice. The plea position can ordinarily be reserved at an initial listing while the prosecution material — the laboratory certificate, the testing documents, the police narrative and any body-worn camera — is obtained and reviewed. This article does not tell any reader how to plead.
Can I challenge the laboratory evidence?
Challenges to laboratory evidence are possible but technical. They may involve chain-of-custody questions, accreditation and calibration issues, sampling and handling procedures, the substance identified, the level reported and the methodology used. Independent scientific advice is sometimes warranted; whether it is justified in a particular case depends on the evidence and what is in dispute.
Do I need an expert toxicologist?
Sometimes. An independent toxicology opinion can be valuable where the laboratory result is borderline, the alleged substance is unusual, the prescription history is significant, the timing of consumption is contested or impairment is in issue. It is not required in every case and should not be commissioned without legal advice on its likely usefulness.
Will a conviction be recorded?
Whether a conviction is recorded depends on the offence, the legislation, the circumstances and the order made. The Sentencing Act 1991 (Vic) requires the Court to have regard to specified matters before deciding whether to record a conviction. A non-conviction outcome is not guaranteed and is not available for every offence.
Can I appeal?
Decisions of the Magistrates' Court may be appealed under the Criminal Procedure Act 2009 (Vic) within the statutory time limits. Appeals from infringement decisions and from administrative licence consequences operate under different frameworks. The applicable appeal pathway, the time limit and the prospects should be confirmed promptly after the decision.
What if I need my licence for work?
Work-related need is relevant to sentencing submissions and (in some categories) to applications for licence reinstatement, but it is not, by itself, a basis to avoid a mandatory licence consequence. Employment evidence should be specific, accurate and supported by an employer letter, payslips and (where relevant) evidence of attempts to manage the impact.
When should I obtain urgent legal advice?
Urgent advice should be obtained where a charge sheet, summons or infringement has been served with a near court date or objection deadline, where the laboratory result is in dispute, where licence consequences are imminent, where the matter involves refusal, impairment or combined alcohol and drugs, where the driver holds a professional or commercial licence, and where medicinal cannabis or other prescription medication is involved. Early advice is materially more useful than late advice.
Criminal & Traffic Law
Charged with drug driving in Victoria?
Parke Lawyers advises drivers facing drug-driving infringements, charges and licence consequences in Victoria — reviewing the laboratory and testing material, advising on objection, plea and court options, and appearing where representation is required.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.