Carry on driving: courts given new power in Victoria as mandatory ban for THC presence is scrapped

Magistrates will have the power from early next year to allow medicinal cannabis patients to keep their driving licence if they are charged after testing positive for THC.

Under new rules to come into effect on March 1, the court will no longer be mandated to issue a six-month driving ban for first offences.

Instead – and assuming there is no evidence of impairment and that the patient was taking a prescribed medication in line with a GP’s instructions – a magistrate can allow them to remain behind the wheel.

However, testing positive for THC, even if no impairment is detected, will remain a criminal offence.

The amendment to the driving laws was approved by the Upper House following the publication of a report backing reform.

Legalise Cannabis Victoria, which first tabled the proposals in July, welcomed the move, saying people who were too frightened to take medicinal cannabis for fear of losing their licence have been thrown a lifeline.

“I know many people grappling to control pain who want to try medicinal cannabis, as other prescribed medications have not worked for them,” Legalise Cannabis MP Rachel Payne said. “I am exceedingly happy that these people will now be able to take this medication, live without pain and will no longer be subjected to a mandatory loss of licence if they fail a roadside test. I say thank you to the Allan government.” 

Fellow Legalise Cannabis MP David Ettershank said: “Roadside saliva tests can detect tiny traces of THC more than a week after consumption, but these miniscule remnants have negligible impact on driving ability.

“Under the old law the mere presence of this remnant chemical meant a compulsory loss of licence for six months and a steep fine, but the driver had only taken their medicine as directed by their doctor. 

“This change means a current prescription holder, who is unimpaired and has taken their medication as directed, can appear before a magistrate, explain their circumstance and the magistrate can allow them to keep their licence.”

The amendment is the first tangible success for cannabis advocates in the continuing campaign to overhaul the nation’s drug-driving laws and how they relate to medicinal cannabis.

It is hoped the findings of a closed-circuit driving trial in Victoria in 2026 will trigger more widespread reform and that other states will follow Victoria’s lead. Tasmania already has an exemption for medicinal cannabis script holders.

Payne described the progress as “wonderful news”, pointing out that magistrates exercise judicial discretion every day for a range of driving charges. The amendment simply extends that ability in relation to medicinal cannabis patients, she said.

“This is wonderful news for the thousands of Victorians who have been prescribed medicinal cannabis,” Payne said. “No other prescribed medication is screened for by police. This is justice for medicinal cannabis patients.

“Change was needed, and I commend the Allan government for showing leadership and courage and seeing this through. Today’s change will save thousands of people heartache and pain in the future.”