Australia: Mobile drug testing (MDT) and drivers who take prescription medication

Last Updated: 5 November 2019
Article by John Gooley

Increased focus on drug driving in NSW

Public and government attention concerning drug driving has been increasing in NSW in recent years, particularly following the media's focus on fatalities resulting from road accidents where a motorist was affected by drugs.

In fact, from 2010 to 2017, 484 people died on NSW roads in crashes involving motorists with at least one of three illicit drugs – cannabis, methamphetamine (including speed and ice) or ecstasy – in their system. (See the Transport for NSW web page Drugs and driving.)

Increased roadside drug testing of drivers

In an effort to crack down on drug drivers, in 2018 the NSW government implemented new road laws and boosted roadside drug testing. The new measures include the following.

  • Doubling roadside drug tests from 100,000 a year to 200,000 a year by 2020
  • Adding cocaine to the list of drugs for roadside testing
  • Increasing maximum penalties for drug drivers to two years imprisonment, fines of $5,500 and/or licence disqualification for up to five years – equivalent to high range drink driving
  • Providing for appropriate restrictions on people who drive after using other drugs, in consultation with health experts

The new rules will ensure all drugs are automatically covered – including prescription medications and drugs which have not even been invented yet. The rules highlight the risk of driving while on medications, such as cold and flu tablets, painkillers containing codeine and other medications which may impair driving ability, through drowsiness for example.

Drugs prescribed for narcolepsy and those prescribed to cancer patients are also likely to return a positive result at a roadside drug test.

Mobile drug testing process and penalties

Mobile drug testing (MDT) detects drivers who have recently used four common illegal drugs: ecstasy, cannabis, cocaine and methamphetamine (including speed and ice). As is done with random breath testing (RBT), police can stop motorists, ask for their licence and conduct a breath test for alcohol. The police will then request you to wipe an MDT test stick down your tongue to check for drugs.

If the test is positive, the motorist is escorted to a roadside testing van or bus or taken to the police station and asked to provide a saliva sample. Should that test also be positive, the motorist is banned from driving for 24 hours. Meanwhile the samples are sent to a laboratory, and if analysis confirms the positive roadside result, the motorist is contacted by the police to be charged.

The court can impose a fine of up to $1100 and an automatic six-month licence disqualification. If it's proven the driver was under the influence of illegal or prescription drugs, the fine can rise to $3300, disqualification for three years and can include up to 18 months in prison.

Consequences of mobile drug testing for prescription medication users

One unfortunate consequence of the drug driving laws is the impact they have on drivers using prescribed medicines that test positive in drug tests, but do not impair driving.

So while it is illegal to drive under the influence of any drug that impairs driving ability, including legal medications, the guidelines are still being established. The question therefore remains as to what impairment is, and at what stage does it affect driving, or incapacitate the driver.

Currently, if a driver tests positive in MDT but claims the results have been caused by prescription medications that do not affect driving ability, it ultimately comes down to police discretion as to whether or not to enforce the 24-hour driving ban and proceed with getting the results analysed in the laboratory.

As many police are not willing to make that call, currently the Australian courts are dealing with an influx of drug driving cases and are ultimately criminalising individuals who represent no risk to other road users. (See Greg Barns, Australia's drug driving laws are grossly unfair.)

Drivers who take prescription medication advised to carry letter from doctor

As a consequence, if you are a driver who has to take prescription medication, it is a good idea to request a letter from your doctor explaining why you are needing the medication, that it will likely show up in a drug test, but that it will not impair driving ability.

Keeping a copy in your car, or a photo of it on your mobile phone, means you can at least produce supporting evidence to the police in the event you are tested for drugs while driving.

John Gooley
Criminal law
Stacks Collins Thompson

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