On the 1st of March 2025, our amendment to the Road Safety Act 1986 took effect, which gives courts discretion not to cancel the licence of medicinal cannabis patients who test positive for the presence of tetrahydrocannabinol (THC) while driving in Victoria.

Previously, patients had no ability to defend themselves and no right to natural justice. 

David Ettershank MP and Rachel Payne MP with the Parsons consultation report.

The effects of THC, found in medicinal cannabis, only last a few hours, but its presence can be detected long after consumption. So, patients who are prescribed cannabis can still test positive in a roadside drug test for having traces of THC in their system, even if their driving is unaffected.

In August 2023, the Victorian Government announced an 18-month medicinal cannabis driving trial to study the effects of medicinal cannabis products on driving performance.

When this announcement was made, we argued that the timeline was too long and that patients would be left in limbo until after the next election. So, we spent months advocating for the government to provide an interim solution.

Our amendment to the Road Safety Act means that medicinal cannabis patients will no longer face an automatic loss of licence. To learn more about how the new law will operate, please see the FAQs below.

It’s important for drivers to know that it will still remain an offence for a medicinal cannabis patient to drive with cannabis in their system.

The new law simply provides a court with discretion not to cancel a driver licence where the driver has a current script and has taken their medication in accordance with their doctors’ advice. 

It will be incumbent upon police to prove that the patient did not have a current script or had not taken their medication in accordance with their doctors’ advice. 

The new law does not apply to a driver who is charged with driving whilst impaired. In that instance, the driver would be charged with Driving Under the Influence. Our amendment does not apply to that charge.

When a driver is charged with having cannabis present in oral fluid after failing a roadside drug test, Victoria Police can take one of two actions:

  • issue a Traffic Infringement Notice (TIN) – which is an on-the-spot fine. As with other fines, the recipient is given an option to take the matter to court.
  • they may elect to issue a ‘Summons to Attend Court”.

To avoid mandatory loss of licence, medicinal cannabis patients need to have their matter heard in court by one of these pathways.

If a medicinal cannabis patient does not elect to challenge a Traffic Infringement Notice, their licence will be suspended automatically by VicRoads.

In order to access the benefits from this change in legislation, it’s important that medicinal cannabis patients who are issued with a Traffic Infringement Notice elect to have the matter heard by the court.

A court can still decide whether to cancel and disqualify the licence of a medicinal cannabis patient. The new law just means that licence cancellation is not mandatory.

This change is not a silver bullet, but it is a good interim measure which provides natural justice for medicinal cannabis patients.

Legalise Cannabis Victoria won’t give up until medicinal cannabis patients are afforded the right to drive, without becoming involved with the justice system simply for taking their medication.

Medicinal Cannabis Driving factsheet – Fitzroy Legal ServiceDownload

Frequently Asked Questions

Please note: This is not legal advice.

A: Prior to the change, any motorist who tested positive to cannabis, whether or not it was prescribed by a doctor, would lose their drivers licence.  As a result, thousands of Victorians lost their licence every year simply for having THC in their system, whether they were a medicinal cannabis patient or not. 

When the change takes effect, the Magistrates’ Court will have a discretion not to interfere with the drivers licence of people who are prescribed medicinal cannabis and who test positive while driving.

A: The above law reform commenced on 1 March 2025.

A: After 1 March 2025, the court will have the discretion not to interfere with the drivers’ licence of motorists who are prescribed cannabis. It will be a decision for the court on the individual facts of each case. Nevertheless a court can still cancel and disqualify a driver licence.

If you are charged with driving with cannabis present in oral fluid and want to keep your driver’s licence, you need to get your case into the Magistrates’ Court. The police will process your offence in one of two ways: 

1. you will receive a Traffic Infringement Notice (TIN – an on the spot fine).  To get your case to court you have 28 days to complete the election to take the matter to court (as set out on the back of the TIN), and after making that election you will, days or weeks later, receive a ‘Summons to Attend Court’,

or 

2. the police may elect to issue you with a ‘Summons to Attend Court”. 

A: If you are a medicinal cannabis patient and you have been given a Traffic Infringement Notice (TIN) for testing positive to cannabis while driving, after 28 days of being charged VicRoads will automatically suspend your licence for six months unless you elect to take your case to court. 

If you want to keep your licence, you have 28 days to elect to have the case transferred to the Magistrates’ Court. The process is clearly explained on the back for the TIN.  When you follow that process you will be sent a notice with a court date to attend the Magistrates’ Court. 

If the court date is before 1 March 2025 you have to postpone your case – see the section below:

A: The new laws apply from 1 March 2025 to all cases involving cannabis that occurred before or after 1 March 25 drivers’ licence of motorists who are prescribed cannabis.

For motorists who are prescribed medicinal cannabis who are charged with an offence occurring prior to 1 March 2025 and who have that case listed earlier than 1 March 2025, they face a minimum six month cancellation of their licence also have to apply to the court to be relicensed.

They would need to postpone their case until after 1 March 2025 in order for the new laws to apply to them. See below:

A: Phone or email the court, and say you have a driving charge and you need an adjournment of your case.  If the court staff ask why you want a postponement, say: 

  • you are charged with testing positive for cannabis while driving, 
  • you want to keep your driver’s licence and, 
  • a change in the law, which takes effect on 1 March 2025, gives the court the discretion not to cancel your driver’s licence.  So you want your case adjourned to a date after 1 March 2025 in order to ask the court to exercise its new discretion in your favour.

If there is any pushback from the court staff, an unlikely event, you will need to attend court on the day your case is listed and make the very same request of the magistrate.  It is a perfectly reasonable request and magistrates are generally reasonable people.   

Victoria Legal Aid (VLA) duty lawyers are at all Magistrates’ Courts and can assist you. Get to court early, at least by 9am, if you want the duty lawyer’s help. You may need to queue up to see them as they are often in high demand. The court staff will direct you to VLA’s office in the court building. 

Note: Keep on top of the dates! If you miss the court date or the time line to request a court hearing, you face all sorts of pain appealing the automatic court processes and you will need immediate legal advice. Free legal advice is always available but sometimes you have to wait to see a lawyer. You can seek advice from LegalAid or find your local community legal centre here.

A: The new law is not a defence to the charge. It remains an offence, and the court will likely impose a penalty upon a guilty plea or finding of guilt.  

What has changed, is that a court now has the discretion whether or not to cancel the driver licence of a medicinal cannabis patient who has driven with cannabis present in their oral fluid. 

In a hearing of such a case, a magistrate will ask the police prosecutor if there is any evidence of impaired driving. The magistrate will also ask the prosecutor if there is any prior history of driving offences.*    

You will also have the opportunity to speak to the magistrate. First and foremost, show the magistrate you are prescribed medicinal cannabis – show the prescription, the medicine bottle or a doctor’s letter. Then spell out the reasons why you need your driver licence: for work (provide a letter from your employer about the importance of your licence), for family (driving kids to school, sport etc, visiting/supporting aged family members – provide a letter from third parties able to confirm the importance of your licence). For any other reasons – build a case as best you can, the court will be grateful. 

*You are entitled to a copy of the police brief of evidence which sets out all the details of the case against you, any prior driving offences and what the police intend to say to the magistrate.  Write to the police informant, the police officer who has charged you, to request a copy of the prosecution brief.  His/her name and address will be on the charge sheet.  They are obliged to provide you with this brief if requested. Get the brief so there are no surprises in court. 

A: A ‘record’ of any offence, including driving offences, is recorded. This is administratively justified so that the justice system and related agencies know if someone is a repeat offender. However, this ‘record’ is not a criminal conviction unless the court orders that the sentence is with a conviction.

If you plead guilty or are found guilty of driving with cannabis present in your saliva, a court under the existing law has the discretion to: 

  • Impose a fine (and to determine the amount of that fine) with or without a conviction. 
  • Impose an adjourned undertaking (a promise to be of good behaviour), almost always without a conviction.
  • Find a person guilty and dismiss the charge without imposing a further penalty but this sentencing order can be with or without conviction.

A court will also decide whether or not to record a conviction.

A: It is a separate and more serious offence under Victorian law to drive whist impaired (by alcohol or any other drug). In such cases police will charge the driver with a different offence of “Driving Under the Influence of Alcohol or Drugs”. Police will conduct a standard impairment test to determine if a driver is impaired. This involves assessing a person’s balance, coordination, observations of driving and overall behaviour and demeanour.  

The law is changing in Victoria only to provide the court with a discretion not to cancel a medicinal cannabis patient’s driver licence where they have been charged with driving with THC in their oral fluid (saliva) when there is no evidence or observations of impaired driving.

If you are found guilty of driving whilst impaired (a different charge), the law remains unchanged and mandatory licence loss will apply. 

A: A current medicinal cannabis script or a letter from your treating doctor is the best proof. A medicine container with the patient and prescriber’s name should also suffice.

A court will only be able to exercise discretion not to take a patient’s driver licence where medicinal cannabis has been taken in accordance with a prescription. A court may require evidence of this matter. The easiest way to do this would be for the defendant to give sworn evidence in court. 

A: It is a separate and more serious offence under Victorian law to drive while impaired. 

Police will conduct a standard impairment test to determine if a driver is impaired. This involves assessing a person’s balance, coordination, and overall behaviour and any observed driving that suggests impairment e.g. dangerous acceleration or braking, swerving across lanes, tailgating etc. 

The law is changing in Victoria only to provide a court discretion not to take your licence where you have been charged with driving with the presence of THC in your system (and that presence is derived from medicinal cannabis taken in accordance with a prescription). 

If you are charged with driving whilst impaired, the law remains unchanged.

A: The law applies to the driver of a ‘motor vehicle’ as defined in the Road Safety Act.

A motorised wheel-chair capable of a speed of not more than 10 kilometres per hour which is used solely for the conveyance of an injured or disabled person is not a motor vehicle.

An e-scooter that has a maximum speed of 25km/h when ridden on level ground is not a motor vehicle.

A: It remains an offence to drive with cannabis present in oral fluid. 

The Victorian Government has commissioned comprehensive research into the road safety implications, if any, arising from motorists who are prescribed medicinal cannabis.

The results of this research is expected to be made available in mid-2026, at which point the government would consider a broader reform that will treat medicinal cannabis like any other prescribed medication.

Such a reform would provide a full defence for medicinal cannabis patients who are driving but not showing evidence of impairment. Medicinal cannabis would be treated the same way as any other prescribed medicine. This is ultimately our goal.

Legalise Cannabis Victoria expresses our thanks to Andrew Shears, a great lawyer, architect of the amendment and friend to the cannabis community in preparing these FAQs.

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