The law is out of step with society in NSW when it comes to driving with medical cannabis in your system.

There has been a social shift. More people test positive for drug driving than test positive for drunk driving on our roads. On Australia Day 2024, 244 drunk drivers were detected in comparison to 543 positive roadside drug detections. 

If you drive with even the smallest detectable trace of cannabis in your system, you are going to be charged with a criminal offence under section 111 of the Road Transport Act.

Even if that cannabis has been prescribed by a GP and you have legally consumed it.

Yet across the border in the ACT, you can buy and ingest cannabis legally.

“The legislation is controversial as you can be charged even if you are driving perfectly competently and the cannabis in your system has been legally prescribed by a GP”.  

 “The law has got to change to permit people the opportunity to produce their cannabis prescriptions if stopped by police for a roadside test.

 “If their only issue is a positive roadside test for traces of cannabis, they should be permitted to go on their way rather than end up in court on a drug-related charge.”

In 2006, the NSW parliament criminalised drug driving. Mobile drug tests became the police tool of enforcement. At a roadside stop, police have the power to obtain a saliva sample from you using a swab stick, or a device that scrapes your tongue.

In addition to cannabis, the test also detects methylamphetamine, ecstasy, cocaine, as well as morphine.

However, the legislation recognises morphine is primarily used as a pain relief drug. Therefore, if detected in your system whilst driving, there is a medicinally prescribed defence. The onus is on the offender to prove that the defence applies.

If caught, the maximum penalty for a first-time offender is $2200 with a 6-month licence disqualification period.

The legislation, as currently drafted, fails to provide a defence for offenders who test positive for cannabis which is medicinally prescribed.

In 2016, cannabis was introduced as a common form of medical treatment for a range of conditions such as body pains and anxiety.

Early this year, drug driving was announced to be an absolute liability offence which makes it even tougher if you are charged. This means that the defence of honest and reasonable mistake of fact is no longer available.

In the right circumstances, you can have your charge dismissed if you have been driving with legally prescribed cannabis in your system.

For expert advice from criminal defence lawyers with a track record in drug driving cases, contact Nott and Co Lawyers for a private discussion.