Medicinal Marijuana and Driving Laws

KEY TAKE OUTS:

• It is an offence to drive with THC (known as tetrahydrocannabinol) in your oral fluid, blood or urine, even if the substance has been prescribed by your doctor
• Speak to your doctor about alternatives to a THC based medical marijuana
• If using medicinal marijuana containing THC, refrain from driving a motor vehicle or supervising a learner driver whilst you are taking the medicinal marijuana
• Undergo testing and awaiting a negative test result prior to resuming driving

There seems to be an increasing interest in using medicinal marijuana as an alternative treatment to more traditional medications and therapies (such as strong painkillers, antidepressants and sedatives).  Medicinal marijuana products can come in all different forms, including oils, tablets, gummies and dried flower products and can contain CBD and/or THC.

CBD (known as cannabidiol) is the non-intoxicating component of marijuana. CBD does not have a psychoactive effect, meaning the user will be able to continue with their everyday life without feeling intoxicated or impaired.

However, THC has psychoactive properties. The user of a THC based medicinal marijuana will experience a euphoric feeling, known as a “high”. The user’s judgment, perceptions and motor skills will be impaired.

The question to be considered is, if I am exploring medicinal marijuana as a treatment option, what do I need to know?

Firstly, you should explore CBD only type medicinal marijuana products. The CBD based products are not known to produce a “high” feeling. This means you can continue about your daily activities, such as driving and working, without any concern that you are impaired.

Where you are being prescribed medicinal marijuana containing THC, you need to be aware that in New South Wales, it is an offence to drive a motor vehicle under the influence of THC or with the presence of THC in oral fluid, blood or urine. It is not a defence that the medicinal marijuana has been prescribed by a doctor. Rather, the offence states that a person must not:

• Drive a motor vehicle;
• Occupy the driver seat of a motor vehicle and attempt to put the vehicle into motion; or
• Occupy the seat next to a learner driver, when the learner driver is operating the motor vehicle;

whilst there is a prescribed illicit drug present in their oral fluid, blood or urine (Road Transport Act 2013, sections 111 and 112). Medicinal marijuana falls within the definition of a ‘prescribed illicit drug’.

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So, what should you do if you are taking medicinal marijuana? As the law currently stands, you should not drive a motor vehicle or supervise a learner driver whilst taking the medicinal marijuana as you will be committing an offence. The penalties you face by driving under the influence of a prescribed illicit drug include:

Drive with the presence of prescribed illicit drug in oral fluid, blood or urine

• First offence – A fine by way of Penalty Notice in the amount of $603 and suspension of driving for a period of 3 months. However, if you elect to have the matter determined by the Court, the maximum fine a Court can impose is $2,200 and a maximum disqualification period of 6 months which cannot be reduced to below 3 months.
• For any second and subsequent offence, you will be issued with a Court Attendance Notice where the maximum fine that can be imposed is $3,300 with a minimum disqualification period of 6 months.

Use or attempted use of a vehicle under the influence of alcohol or any other drug

• First offence – A fine of $3,300.00 and/or 18 months imprisonment with a minimum disqualification from driving for 12 months.
• For any second and subsequent offence, a fine of $5,500.00 and/or imprisonment of 2 years with a minimum disqualification of 2 years.

Is there any defence available to me if I do not take the medicinal marijuana regularly or wait a certain period of time before driving? The short answer to this question is no. Ultimately, it will depend on the frequency of consumption of the medicinal marijuana and a user’s body composition as to how long it will take for the presence of the THC component to exit the user’s body. For this reason, a user should err on the side of caution and not drive a motor vehicle until the user has confirmation that the THC component is no longer present in their oral fluid, blood or urine. It is recommended you speak to your doctor about testing.

Of note, the NSW Court of Criminal Appeal recently considered the question of whether honest and reasonable mistake of fact was available as a defence to the offence of ‘Drive whilst presence of illicit drug in person’s oral fluid, blood or urine’. In this case, Mr Narouz was stopped by Police and subjected to a roadside drug test for illicit drugs, which returned a positive result for cocaine. A further test was conducted at the Police Station and sent for analysis, which also tested positive for cocaine.

Mr Narouz relied upon the defence of honest and reasonable mistake of fact. Mr Narouz told the Court he had not consumed cocaine in the days or weeks prior to the positive roadside result. However, he had a sip from a bottle, which was owned by a friend and he believed his positive result stemmed from this action. After considering the explanation provided by Mr Narouz, the NSW Court of Criminal Appeal stated the following:

1. The offence of ‘Drive whilst presence of illicit drug in person’s oral fluid, blood or urine’ is deemed to be an offence of absolute liability. What this means is Police do not need to show there was intention, knowledge, recklessness or negligence on the part of the offender. Rather, the positive test result would be sufficient evidence.
2. As the offence is deemed to be an absolute liability offence, the defence of honest and reasonable mistake of fact is not available. Ultimately, this finding is a message to the community that there is no excuse for driving under the influence of drugs.

Charged with a criminal offence involving medicinal marijuana? Take Action Now!

Navigating the legal landscape of medicinal marijuana use is crucial, especially if it impacts your driving privileges. If you’re facing legal challenges, consider booking a consultation with the Coutts team. Our criminal lawyers are experts in medicinal marijuana cases and are ready to provide the guidance you need. Schedule an appointment with our Coutts Criminal Team today and secure your peace of mind.

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