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Drug Driving

Tested positive at a roadside drug test, or charged with driving under the influence? These are two different offences with very different consequences — but both put your licence at risk. Call the free hotline now to find out exactly what you're facing and get a lawyer on it before your court date.

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If you've been charged, you'll usually be given a court date — and missing it can mean being convicted in your absence and losing your licence automatically. Drug driving is state and territory road law, so the penalties, disqualification periods and your options all depend on where you were stopped. Get advice well before that date, not the night before.

Drug Driving at a glance

Two different charges

"Drug presence" (an illegal drug is detected in your system — no impairment needed) and the more serious "driving under the influence" / drug-impaired driving (police say the drug actually affected your driving)

How it''s tested

A roadside saliva (mobile drug) test screens for THC (cannabis), methamphetamine ("ice"/"speed"), MDMA and, in some states, cocaine — confirmed by a lab blood or urine test

Likely consequence

Licence disqualification and a fine for a presence offence; for impaired driving or repeat offences, larger fines and possible imprisonment — the exact amounts and periods vary by state and territory

Where it''s heard

Usually the local Magistrates'' Court in the state where you were stopped; some first presence offences can be dealt with by a penalty notice instead

Can you keep your licence

Often there''s a fight to be had — a minimum disqualification, a possible non-conviction, or arguing the charge itself — but it depends on the state, your record and the facts

The medicinal cannabis trap

In most states a prescription is NOT a defence to driving with THC present — Tasmania is the exception, and Victoria has eased the licence consequences. Check before you assume your script protects you

The two kinds of drug driving — and why it matters

The single most important thing to understand is that "drug driving" covers two separate offences, and the one you're charged with changes everything.

The first is a **drug presence** offence (sometimes called "drive with illicit drug present" or similar). This is what a roadside saliva test catches. The prosecution only has to prove that an illegal drug was in your system — it does **not** have to prove you were affected, impaired, or driving badly. You can be guilty even if you felt completely normal and the drug was taken long before you got behind the wheel. In most states this is a strict liability offence, which is exactly why so many people are caught off guard by it.

The second is **driving under the influence (DUI) of a drug** — also described as drug-impaired driving. This is far more serious. Here the police allege the drug actually affected your ability to drive safely, and the maximum penalties are much higher, including the real possibility of imprisonment in serious or repeat cases.

Which charge you're facing, and the penalties attached, depend on the state or territory you were stopped in. A two-minute call will pin down which one it is and what's realistically at stake. Talk it through with a lawyer now →

How roadside drug testing works

Police across Australia run roadside mobile drug testing using a saliva sample. The test typically screens for **THC (the active compound in cannabis), methamphetamine ("ice" or "speed") and MDMA (ecstasy)**, and in some states cocaine as well.

If the first sample is positive, you'll usually be asked to give a second saliva sample, and that sample is then sent to a laboratory for confirmation by a more accurate blood or urine analysis. The roadside device is a screening tool — the lab result is what's relied on in court.

A crucial point about cannabis: THC can stay detectable in your saliva for a long time after the effects have worn off. "I wasn't high anymore" is generally **not** a defence to a presence charge, because presence — not impairment — is the whole offence. That surprises a lot of people, and it's one of the first things worth talking through. Talk it through with a lawyer now →

What the penalties look like

Because drug driving is governed by each state and territory's road laws, there is no single national penalty — so be wary of any figure presented as "the" Australian penalty. What's consistent is the **shape** of the consequences.

For a **presence** offence, you can generally expect a fine and a period of licence disqualification, with a minimum disqualification set by law in most states. Imprisonment is usually not on the table for a straightforward first presence offence. In some states a first offence can even be finalised by a penalty notice rather than a court appearance — though that still carries a licence consequence.

For **driving under the influence / drug-impaired driving**, the maximum penalties are significantly higher: larger fines, longer disqualification, and possible imprisonment — especially for repeat offences. Some states also require an interlock or a behaviour-change program before you can drive again.

The actual numbers — the fine, the minimum and maximum disqualification, whether a conviction is recorded — turn on your state, your driving record and the specific facts. Get them confirmed for your situation rather than relying on a figure you read online. Talk it through with a lawyer now →

Medicinal cannabis: the prescription trap

This catches out more people every year, so read it carefully. In most of Australia — New South Wales, Queensland, Western Australia, South Australia, the ACT and the Northern Territory — it is **still an offence to drive with THC present in your system, even if you have a valid medicinal cannabis prescription**. The presence offence doesn't care whether the THC came from a script or not. A prescription is generally not a defence.

There are two important exceptions. **Tasmania** has a statutory defence: a properly prescribed medicinal cannabis patient can lawfully drive with THC present, provided they are not actually impaired (strict conditions apply, and the law was being broadened in 2025). **Victoria**, from 1 March 2025, didn't make it legal — but it gave magistrates the discretion not to cancel the licence of a prescribed patient who tests positive without impairment.

Reforms are moving in this area, including a bill introduced in NSW, so the position can change. If you're a prescribed patient who has tested positive, do not assume your script protects you — and equally, do not assume you have no defence. This is precisely the kind of fast-changing, state-specific question the hotline can sort out for you. Talk it through with a lawyer now →

Where your case is dealt with

Most drug driving charges are heard in the local Magistrates' Court (called the Local Court in some states) in the area where you were stopped. You'll generally be given a date to appear, and that date matters: turning up unprepared, or not turning up at all, can lead to the harshest outcome and an automatic licence loss.

The good news is that there is often genuine room to influence the result — arguing for the minimum disqualification, putting your circumstances to the court, seeking a non-conviction order where the law allows it, or in some cases challenging the charge or the testing process itself. What's possible depends entirely on the state and the facts. Walking in with a plan, and ideally a lawyer, is what separates a good outcome from a bad one. Talk it through with a lawyer now →

Mistakes that make things worse

• Assuming a positive saliva test means there's nothing to be done — there is often a real argument about disqualification, conviction, or the charge itself.
• Believing your medicinal cannabis prescription is automatically a defence — in most states it isn't.
• Pleading guilty at the first opportunity without understanding the licence consequence in your state.
• Treating a "presence" charge as the same thing as a serious "under the influence" charge — or vice versa — and preparing for the wrong fight.
• Ignoring the court date, or leaving advice until the night before, when there's no time to do anything useful. Talk it through with a lawyer now →

How Legal Hotline helps — right now

A drug driving charge is stressful, the rules differ from state to state, and your licence — often your job, too — is on the line. Legal Hotline is a free service you can call any time, day or night. In a single call we'll help you work out which offence you're actually facing, what it means in your state, and whether there's a way to protect your licence.

If you need a lawyer, we'll connect you with an experienced traffic and criminal lawyer who can act for you — anywhere in Australia, usually within the hour. There's no cost to call and no obligation. If you've been charged or tested positive, the smartest first step is simply to pick up the phone before your court date. Talk it through with a lawyer now →

What happens after you''re charged

The roadside test and confirmationYou return a positive roadside saliva test, give a second sample, and that sample is sent to a laboratory for confirmation. You may be given an immediate short suspension in some states while results are confirmed.

You''re charged and given a court dateIf the lab confirms the result, you're charged. For many presence offences you'll receive a court attendance notice with a date; some first offences may instead be dealt with by a penalty notice.

Get advice before that dateThis is the window that matters. Speaking to a lawyer early means you can prepare a plea, gather material that helps your case, and understand your licence options in your state — instead of reacting on the day.

Court and the outcomeA magistrate decides the penalty — typically a fine and disqualification for a presence offence, with heavier penalties (and possible imprisonment) for impaired or repeat offending. There may be scope for a reduced disqualification or a non-conviction.

Drug Driving — your questions answered

What''s the difference between drug driving and DUI of a drug?

A drug "presence" charge only requires that an illegal drug was detected in your system — police don''t have to prove you were affected. Driving under the influence (DUI) of a drug is more serious: police allege the drug actually impaired your driving, and the maximum penalties, including possible imprisonment, are much higher. Which one you''re facing changes everything, so it''s worth confirming on a quick call.

Can I be charged if I wasn''t even high anymore?

For a presence offence, yes. THC and other drugs can stay detectable in saliva long after the effects wear off, and presence — not impairment — is the offence in most states. "I felt fine" is generally not a defence to a presence charge. There may still be other arguments available, which is exactly what advice is for.

I have a medicinal cannabis prescription — does that protect me?

In most states (NSW, QLD, WA, SA, ACT and NT) a prescription is not a defence to driving with THC present. Tasmania is the exception, with a defence for prescribed patients who aren''t impaired, and Victoria gives magistrates discretion not to cancel a prescribed patient''s licence. The law is changing, so don''t assume — get your specific situation checked.

Will I automatically lose my licence?

A disqualification is the usual consequence, and most states set a minimum period for a presence offence. But depending on the state, your record and the facts, there can be room to argue for the minimum, for a non-conviction, or against the charge itself. The outcome isn''t always fixed — that''s why advice before court matters.

Could I go to jail for drug driving?

For a straightforward first "presence" offence, imprisonment is usually not on the table. For driving under the influence (impaired driving), and for serious or repeat offending, imprisonment is a real possibility in many states. The risk depends heavily on the charge and your history — call to understand where you stand.

Do the penalties differ between states?

Yes — drug driving is state and territory road law, so the fines, minimum and maximum disqualification periods, and whether a matter goes to court or a penalty notice all vary depending on where you were stopped. Be cautious of any single "national" penalty figure. We''ll tell you what applies in your state.

Is calling Legal Hotline really free?

Yes. The information line is free and open 24 hours a day, 7 days a week. Call any time to understand your charge and your options — no cost, no obligation — and if you need one, we''ll connect you with a lawyer anywhere in Australia, usually within the hour.