What you need to know about Prescribed Cannabis and driving

KEY TAKE OUTS:

• There is no exemption for prescribed cannabis users in respect to driving with THC in their oral fluid, blood or urine.
• There is a zero tolerance for TCH traceability in drivers regardless of the substances legality as a medicine.
• If the medical cannabis has any THC in any form, then driving under the influence of it is illegal in New South Wales

The crime of drug driving or driving with the presence of certain drugs other than alcohol in oral fluid, blood or urine is contained in s111 of the Road Transport Act 2013 (NSW), which makes it an offence to drive with any presence of four illicit substances in a drivers system.

• Cannabis (delta-9-tetrahydrocannabinol) (or otherwise known as Marijuana, Pot, Hooch, Hash or weed).
• Speed (methylamphetamine)
• Ecstasy (3,4-methylennedioxymethylamphetamine)
• Cocaine

People prove to be very unaware just how long cannabis can stay in their oral fluid, blood or urine.  There are countless cases of people each day in Court who smoked cannabis some days prior, yet they still tested positive at a roadside test and end up disqualified drivers.

Most people who use medicinal cannabis for health reasons, with legal prescriptions, are not exempt from the laws in respect to driving with cannabis in their system.

THE IMPACT OF CANNABIS ON DRIVING SKILLS

Anyone who is driving a vehicle must be aware that the primary responsibility is safety to both themselves and other road users.  Multiple studies have proven that the THC (the cannabinoid responsible for the ‘high’ feeling) impairs driving abilities even in people who have a high tolerance to it, and have ‘been smoking for years’.

If the medical cannabis has any THC in any form, then driving under the influence of it is illegal in New South Wales.

When the effects of driving under the influence of THC are compared with alcohol, it is noted that alcohol acts as a depressant, affecting the central nervous system and impairing judgement, motor coordination and reaction times.  Cannabinoids such as THC, on the other hand, affect spatial perception and attention.

The Road Transport Act 2013 stipulates that driving under the influence of any drug, medicinal o otherwise that impairs driving is an offence.  There is a zero tolerance for TCH traceability in drivers regardless of the substances legality as a medicine.

THC is a lipid soluble molecule that can build up in your fatty tissue over time, which means that you may test positive even when you aren’t impaired, or when you haven’t consumed cannabis for a while.

THC can be found in your blood well after 12 hours after consumption, and this can be longer for users of medical cannabis – simply because their use is regular.

DRIVING SAFELY WHILE USING MEDICAL CANNABIS

THC can impair motor skills, cognitive function and attention span, whereas CBD usually does not have these same effects.  The effects can also differ based on the type of cannabis, the method of administration and an individuals metabolism.

In the 3-6 hours after consumption, medical cannabis can have the greatest psychoactive effects, potentially impairing driving ability.  So there is a need to be aware that it may be the case that driving whilst using medical cannabis – you may not be able to drive.

NAVIGATING RANDOM DRUG TESTS WITH MEDICAL CANNABIS

There is no exemption for prescribed cannabis users in respect to driving with THC in their oral fluid, blood or urine.

You may be pulled over by Police for a random drug test and the fact that you have a prescription for cannabis does not give you a licence to drive with cannabis in your system.  You will typically be given a saliva test which is analysed by the Police in minutes.

Whilst it will not assist you in respect to a positive test, ensure that you always carry with you:

1. Documentation and prescriptions
2. Know the legal limit of having THC in your system – which is ZERO 3.If stopped, remain respectful and informed in regards to your position.

THE PENALTIES

The penalty for driving with an illicit substance (which includes Cannabis) in your oral fluid in NSW result in fines and disqualification.  The automatic disqualification is 6 months with a minimum of 3 months.  If it is a second or subsequent offence, the fine increases and the disqualification increases to 12 months automatic disqualification and a minimum of 6 months.

To refuse a oral fluid test results in a larger fine and a disqualification that is at the discretion of the Court.

There is simply no way of identifying whether there will be THC in your system if you are a regular driver who is the user of prescribed cannabis.  It is almost inevitable that if you drive daily, and use  prescribed cannabis daily, you may be driving with an illicit substance in your system.

Even cannabis that has THC removed, may well leave traces of THC in your system.

It is a difficult ‘cross roads’ in the laws of prescribed cannabis and driving.  There is no current manner of testing for a ‘level’ in your system such as there is with a prescribed concentration of alcohol in your blood. If there is an illicit substance in your oral fluid, blood or urine – it is returned as a positive.  Whether you have had 20 cones, or a puff on a joint hours ago.  If it is there – it is there.

Essentially, the Courts are saying that if you are a regular user of cannabis, prescription or not – you shouldn’t drive.

In the event you are charged with driving with an illicit substance, don’t hesitate to contact us at Coutts where we have specialist experienced lawyers to assist you with preparing for your matter with a view to a reduction in penalty and ensuring you spend the least amount of time off the road possible.

1300 COUTTS 

Or  

The criminal law hotline on 02 8324 7527  

Schedule an Appointment Now

Carolyn Shiels joined the Coutts Lawyers & Conveyancers team in 2024 as Special Counsel for Criminal and Family Law.

Carolyn has been involved in the prosecution of criminal law since 1988 when she became a Police Prosecutor.  A period of 13 years in the Police saw a natural progression to a Law Degree and employment with the Office of the DPP as a Prosecution Lawyer.

Carolyn has been a defence lawyer since 2016 and has extensive experience in both the Local and District Courts.

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