Victoria Legal Aid

Drug driving

The police may charge you with an offence of drug driving if they think that you had a drug in your system while you were driving and this has affected your driving.

The police may charge you with an offence of drug driving if they think that you had:

  • an illicit drug in your system while you were driving
  • a mixture of illicit drugs and alcohol in your system
  • a prescription drug in your system while you were driving and you took the drug in a way that your doctor did not prescribe, which has affected your driving.

Speak to a lawyer if you have been charged with driving under the influence or if you have been found guilty of a drug or drink driving offence before.

Types of drug driving offences

Driving with illicit drugs present in oral fluid

Police randomly test drivers for cannabis, ice or ecstasy in saliva. Police may give you a fine if there are drugs in your system and this is your first offence.

You may be charged and have to go to court if you are charged with other driving offences or if you have been caught drink-driving or drug-driving before.

Driving with more drugs than prescribed

Police will charge you with this offence if they believe you were driving while affected by a drug but no illicit drugs show up in your blood test. If you plan to plead not guilty, your defence will have to show that you took the medicine exactly as you were told to by your doctor, chemist or dentist.

Driving while impaired

Police will charge you with this offence if your blood or urine test show drugs were present after they gave you a drug impairment assessment.

Driving under the influence

If you are charged with this offence the police must prove that you had drugs in your system and that you could not control your vehicle properly. Get legal advice if you are charged with this offence.

Refusal offences

You will be charged with this if you refused to have a drug test or give a sample of blood, saliva or urine.

Driving with drugs and alcohol present

Drivers may be charged with a separate offence if they are caught driving with more than the prescribed amount of alcohol and illicit drugs present. The penalties for this offence are higher. Find out more about going to court for traffic offences if you are charged with this offence.

Going to court for a drug driving offence

If you have a future court date, you may be eligible to get help to prepare before court. You can request help onlineExternal Link .

For information about how to prepare for the court hearing, read Going to court for traffic offences.

Whether you are guilty depends on the exact facts and circumstances of your case. Look at the ‘Details of the charge’ in your charge sheet to see what the police officer wrote about your offence. The magistrate refers to this in the courtroom.

The prosecution has to prove that:

  • you were driving
  • you had consumed drugs.

What are my options if I have to go to court?

Plead guilty

If you agree that you broke the law, you should tell the court that you are pleading guilty. During the court hearing, the prosecutor will read out the statement of alleged facts. The magistrate will find you guilty and give you a penalty.

If you plead guilty the magistrate treats this as a sign that you are co-operating and may give you a less severe penalty.

For more information visit our page Going to court – pleading guilty.

Plead not guilty

If you believe that you did not break the law, or you disagree with what is in the statement of alleged facts, you must tell the prosecutor before your court date that you plan to plead not guilty. They will hold a summary case conference with you before your case is heard in court. If you still want to plead not guilty after the conference, tell the magistrate. The magistrate will adjourn (put off) your case for another day.

You will come back to court for a contested hearing. When you come back the magistrate listens to evidence from you and the police before making a decision. You should have a defence. Saying that you did not know you were breaking the law is not a good enough defence.

If you are pleading not guilty, get legal advice before the contested hearing.

For more information visit our page Going to court – pleading not guilty.

Can I adjourn my hearing?

You can ask the magistrate to adjourn (put off) your case if you have a good reason. For example, to get a lawyer.

If you have not adjourned your case before and you are on summons, you may be able to get an adjournment without going into the courtroom. When you arrive at court, go to the counter and tell the staff you want an adjournment.

What are the penalties if I am found guilty?

Fine or time in jail

The magistrate may give you a fine with penalty units. The fines are:

  • 30 penalty units – driving with more than prescribed amounts of drugs and alcohol
  • 25 penalty units (or 3 months jail) – driving under the influence
  • 12 penalty units – providing a sample of fluid with prescribed drug present
  • 12 penalty units – driving with more drugs than prescribed
  • 12 penalty units – driving while impaired
  • 12 penalty units – refusing to be tested for drugs or alcohol.

You should tell the magistrate about your income and things you have to pay for, and whether you support a family.

If you get a fine you can pay it straight away at court. If you do not pay the fine straight away, Fines VictoriaExternal Link will send you a Court fine collection statement. This will tell you how much you owe and when the fine is due.

You can ask Fines Victoria for a payment plan if you cannot afford to pay the fine in one payment.

If you do not pay the fine when it is due, Fines Victoria may increase the fine. The court can issue a warrant for your arrest.

The magistrate could send you to jail but this is not likely if this is your first offence.

If this is not your first offence the maximum number of penalty units is much higher. They will depend on how many times you have been found guilty before. The fines are:

  • up to 120 penalty units – driving with more drugs than prescribed
  • up to 180 penalty units or 18 months jail – driving while impaired
  • up to 120 penalty units – refusing a saliva test
  • up to 180 penalty units or 18 months jail – refusing any other drug test.

If it is not your first offence the penalty for a driving with both alcohol and an illicit drug present depends on how much alcohol was in your BAC. For example:

  • if your BAC was less than 0.15 the maximum penalty is 90 penalty units or six months jail
  • if it was your third offence and your BAC was 0.15 or more the maximum penalty is 270 penalty units or 18 months jail.

Losing your licence

If the magistrate finds you guilty of drug driving they must cancel your licence and disqualify you from driving for at least six months.

If this is your first offence your licence must be cancelled for at least:

  • 6 months – driving with more drugs than prescribed
  • 12 months – driving while impaired
  • 2 years – refusing a drug test.

The only exception to this is if a driver gets an infringement notice for drug driving. Drivers who get a drug driving infringement will have their licence suspended instead of cancelled. This means that, VicRoads will return their licence when the suspension period ends. If a driver licence is cancelled, the driver will have to apply to be relicensed.

If you lose your licence you must not drive at all during this time. There are no exceptions. There are very serious penalties for driving while suspended.

Behaviour change program

All people caught drug driving must complete a behaviour change program (BCP). VicRoads will write to you and tell you which program you need to complete.

Agencies that conduct the programs are approved by VicRoads. You can choose which agency you would like to attend. The BCP agencies are listed on the VicRoads or Directline websites. Contact the agency as soon as you lose your licence. You may need to wait for a place. Prices may vary so it is advisable to shop around and compare prices. A discounted rate applies for concession card holders.

You usually do two sessions with the agency. The agency will issue a certificate when you successfully complete the BCP. The agency may also refer you to other services such as a drug and alcohol counsellor or your doctor if they believe that you have a drug problem. You will need this certificate to get another licence after serving your period of disqualification or suspension.

There is a more intensive behaviour change program for drivers who have been caught drink or drug driving before, or who are found guilty of more serious drug driving offences, such as driving while impaired.

When the police can suspend your licence

The police can suspend your licence if you are charged with:

  • a refusal offence (oral fluid, drug impairment, blood or urine tests)
  • a combined drug and alcohol offence (high alcohol reading)
  • being impaired by a drug
  • a second drug or drink driving offence within the last 10 years
  • refusing to have a blood or urine test.

This is called an 'immediate suspension' even though it is not always immediate. It could take up to 12 months for this to happen. The suspension lasts until the date in the suspension notice or until your case is heard in court.

If the magistrate cancels your licence and disqualifies you from driving, usually the disqualification will be back-dated to the date you got the immediate suspension notice.

Other penalties

The magistrate can also choose to:

  • place you on an undertaking to behave well for a certain amount of time
  • place you on a community corrections order
  • impound (lock up) or immobilise your vehicle if you have committed another driving offence within the last six years or if you had both drugs and alcohol in your system.

What else might happen if I am found guilty?

What happens in court may go on your criminal record as a driving conviction. This will usually appear on your VicRoads driving record but it may also go on your criminal record.

Read Possible outcomes for traffic offences for more information about penalties and other outcomes.

Can I appeal the magistrate’s decision?

Yes. If you do not agree with the decision you can appeal to the County Court. You have 28 days to do this. Get legal advice before you decide. You could get a higher penalty.

Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au

Reviewed 21 August 2022

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