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Poppy Morandin and Jimmy Singh.


Victorian patients using medicinal cannabis may soon be able to drive with the substance in their systems, following proposed reforms to the state’s drug-driving laws.

The change comes as an Australian first, and would incorporate the views of Ministers, police, doctors, and other health experts with an expectation that the major changes could come into effect early next year.

Whilst medicinal marijuana is legal in Australia, and has been in Victoria since 2015, it remains an offence for drivers, even if they are prescribed marijuana by their doctor, to have the drug in their systems.

The Road Safety Amendment (Medicinal Cannabis) Bill 2019 was presented to the parliament by Reason Party MP Fiona Patten and was debated last on the 14th of October.

During her second reading speech of the bill, Patten described how: “This exception does not apply to a driver of a motor vehicle who is either impaired, or incapable of having proper control of a motor vehicle—ensuring that these changes do not affect the safety of other road users.

“People who have been prescribed a medicine and can drive safely should be allowed to drive. This is how we treat every single other prescription medicine.”

“Too often, Victorians who would benefit from medicinal cannabis are forced to choose a less effective or more dangerous medication, such as an opioid or a benzodiazepine, simply because driving with a residual amount of THC could mean the loss of a drivers licence or criminal penalties. This bill changes that.” she proposed.

It’s 4 years since medicinal cannabis was made lawful in Australia but it’s still being treated as an illegal drug in dodgy roadside drug testing in every state and territory. Time for reform.” summarised Alex Wodak, President, of the Australian Drug Law Reform Foundation.

In NSW, pursuant to Section 111 of the Road Transport Act 2013 (NSW), a person is prohibited from driving a motor vehicle or occupy the seat of one next to a learner driver who is driving the vehicle, whilst there is an illicit drug present in the person’s oral fluid, blood or urine.

These drugs include THC (the active in ingredient in cannabis), speed, ecstasy, and cocaine.

A first-time offender will face a criminal conviction, up to a fine of $2,200, 6-months disqualification (or minimum 3-months).

The penalties for a second or subsequent offender are heavier.

Click here for a thorough outline on the law on drug driving in NSW.

A defence may be available in some cases where the accused has made an ‘honest and reasonable mistake of fact’, which entails that they were truly unaware that the drug was in their system. This could apply to people who drive days or weeks after taking the substance, not realising it would still be in their system.

By the end of 2019, over 28,000 prescriptions for cannabis products had been issued to patients by doctors, mostly GPs. with this projected to reach 70,000 by the end of 2020.

Cannabis advocates have marked drug driving as the “biggest issue for cannabis law reform,” due to the way it is used as a “vicious weapon,” by the prohibition lobby in indicating that cannabis may lead to more fatalities on the road as explained by Michael Balderstone, leader of the HEMP Party.

The overly punitive nature of the current legislation also enforces a significant barrier for patients who may seek to use the medicine, “especially for people in regional areas, if they lose their licence they can lose their jobs, their families, their house – everything… it’s stopped a lot of people from using cannabis,” explained Mr Balderstone.

Earlier this year, Magistrate David Heilpern stepped down from his position at Lismore Local Court, largely because of this function of the law.

“I just thought the laws were so grossly unfair that I didn’t feel that I could continue to apply them,”

“An enormous number, the vast majority of people who are brought before the courts on this charge, are not affected [by the drug].”

“People would lose their licence, therefore they would lose their job. Therefore, they could well lose their house. Their relationships were affected. People became very much more isolated,” he continued.

Currently in Victoria, there is also an inquiry into the use of cannabis in Victoria, with it set to report by 1 June 2021.

The Legal and Social Issues Committee will inquire into, and consider issues such as young people and cannabis, protecting public health and safety, implementing health education campaigns, preventing the illegal cannabis trade in Victoria, and assessing the health, mental health, and social impacts of cannabis use on people who use cannabis, their families and carers.

Interesting facts:

If being sentenced in court for drug driving, a well written apology letter for court can be used in court to improve the sentence outcome.

Have a question? call experienced drug lawyers in Sydney today.

Published on 25/10/2020

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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