Drug Driving Laws in Australia

by The FindLaw Team

In danger of stating the bleeding obvious: yes, it is an offence to drive a vehicle in Australia under the influence of drugs. Most drivers would have undergone a breathalyser test at some stage, but people should also be aware that the police can also administer a drug test if they suspect a person is under the influence of an illicit substance. All States have laws making it an offence to operate a vehicle while on drugs, and if a person is found to be under the influence of an illegal substance, they may find themselves in trouble with the law.    

When can the police test for drugs?

A police officer can request a driver submit to a test if they reasonably suspect that a driver might be under the influence of drugs from their appearance or behaviour. Furthermore, it’s important to be aware that it is an offence for a person to refuse a request from a police officer to undergo a drug test. 

When conducting a drug test, the States have slightly different requirements in how a test should be administered by a police officer. For instance, in Victoria, when the police are conducting a drug assessment, the procedure must be videotaped and a copy of the tape must be given to the driver within seven days if they have been charged with an offence. Only in exceptional circumstances will a drug test not be recorded in Victoria. While, in New South Wales, if a police officer takes an oral fluid sample from a person after an arrest, the officer must:

  • place the sample into a container
  • fasten and seal the container
  • mark or label the container for future identification
  • provide a certificate to the person whom the sample was taken from with sufficient details for them to identify their sample
  • as soon as reasonably practical, submit the sample for testing in a laboratory.

Blood can also be taken from a driver who is suspected of being drug impaired and the requirements to conduct a test again differ between the States. 

In New South Wales, a blood sample can be taken from a person in the event that no oral fluid can be obtained, and must be conducted under the direction of a doctor, registered nurse or prescribed sample taker. Additionally, a blood sample can be taken from a person even without their consent. 

Blood tests can also be administered in Queensland without consent if a person is unconscious or unable to communicate. Queensland case law has also ruled that blood tests which were illegally administered, may still be submitted as evidence in court.

When can’t police conduct an oral fluid assessment?

In Queensland and Victoria, a request for an oral fluid test cannot be made three hours after the person has stopped driving a vehicle, while in New South Wales it is two hours.

New South Wales police are further limited from administering an oral fluid test if:

  • the person is suffering from severe injuries and the procedure may be dangerous 
  • the person has been admitted into hospital for medical treatment, and unless a medical practitioner is notified and consents, a test cannot be conducted. 

The consequence for driving under the influence of drugs is treated seriously under Australian law, with penalties ranging from the suspension of an individual’s licence to imprisonment. The article is far from exhaustive and if a person has an issue regarding a driving offence, should seek assistance from a lawyer.  



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