Medical Cannabis And Driving Laws In NSW

Thousands of medicinal cannabis patients in New South Wales could soon be spared criminal penalties for driving with traces of THC in their system under a landmark reform that seeks to balance road safety with the realities of modern medical treatment.

The New South Wales Government is preparing to introduce a significant overhaul of the state’s drug-driving laws, proposing a new framework that would allow certain drivers prescribed medicinal cannabis to legally drive despite testing positive for tetrahydrocannabinol (THC), the primary psychoactive component of cannabis.

The proposal marks one of the most substantial changes to roadside drug-driving enforcement since the introduction of random drug testing in NSW and comes amid rapidly growing medicinal cannabis use across Australia.

With more than one million medicinal cannabis users nationwide—and an estimated one-third residing in NSW—the Government says current laws are increasingly out of step with the needs of legitimate patients who rely on prescribed cannabis products to manage chronic pain, anxiety, epilepsy, cancer-related symptoms and other medical conditions.

Under existing laws, motorists can be charged simply for having THC present in their saliva, blood or urine while driving, regardless of whether they are impaired.

Critics have long argued that the approach unfairly penalises medicinal cannabis patients who may test positive days after consuming their medication despite no longer experiencing any intoxicating effects.

The proposed reforms seek to address that concern while retaining safeguards designed to protect road users from impaired drivers.

Can You Drive with Medical Marijuana? How the New THC Threshold Scheme Would Work

Under the proposed framework, drivers prescribed medicinal cannabis would no longer automatically face prosecution merely because THC is detected in their system.

Instead, a driver who tests positive for THC could avoid criminal penalties if several conditions are met.

To qualify, the driver must:

• Hold a valid prescription for medicinal cannabis;
• Be registered with Transport for NSW as a medicinal cannabis patient;
• Complete an online education program relating to cannabis use and safe driving;
• Hold an unrestricted NSW driver’s licence; and
• Record a THC level below a prescribed maximum threshold.

Learner drivers, provisional licence holders and commercial drivers would be excluded from the scheme.

The reform represents a departure from NSW’s longstanding “presence-based” approach to drug driving, under which any detectable amount of THC can result in criminal penalties.

Instead, the proposed model introduces a threshold-based system intended to distinguish between low-level THC detections associated with lawful medicinal use and higher concentrations that may raise concerns about recent consumption or potential impairment.

Three-Strike System Proposed for Cannabis Driving Laws

Drivers prescribed medicinal cannabis would still be subject to roadside drug testing in the same manner as all other motorists.

If a roadside test produces a positive result, the driver will initially receive a 24-hour prohibition from driving while laboratory analysis is conducted.

The outcome would then depend on the laboratory results.

If the THC concentration is below the prescribed threshold, no criminal charge would be laid and no further action would be taken.

However, where the laboratory result exceeds the permitted threshold, a graduated enforcement system would apply.

Under the proposed “three-strike” model:

First detection above the threshold: The driver would receive a warning letter.

Second detection above the threshold within two years: A further warning letter would be issued.

Third detection above the threshold within two years: The driver would face a $704 fine and a minimum three-month licence disqualification from Transport for NSW.

The Government has indicated that the warning system is intended to provide medicinal cannabis patients with an opportunity to adjust their dosage, timing of medication use and driving behaviour before punitive sanctions are imposed.

Importantly, the reforms would not protect motorists who drive while impaired.

Drivers displaying signs of impairment would remain subject to existing serious driving offences carrying substantial penalties.

A Shift Toward a More Practical Approach

The proposal has been welcomed by many medicinal cannabis advocates who have argued for years that NSW’s current laws fail to recognise the unique pharmacology of cannabis.

Unlike alcohol, THC can remain detectable in bodily fluids long after its impairing effects have dissipated.

As a result, a person may test positive despite posing no greater risk on the road than any other driver.

For medicinal cannabis patients, this has created a difficult dilemma.

Many rely on prescribed cannabis products to function effectively in their daily lives, manage employment responsibilities and care for family members. Yet using their medication as directed can potentially expose them to criminal prosecution and loss of their driver licence if they choose to drive.

Supporters of reform argue that the proposed threshold model represents a more evidence-based approach by focusing regulatory attention on higher THC levels while maintaining roadside enforcement against dangerous driving behaviour.

Road safety advocates, however, have emphasised the importance of ensuring any changes do not undermine deterrence or increase the risk of impaired driving.

The Government maintains that the proposal strikes an appropriate balance between patient access and public safety.

Is Drug Driving a Criminal Offence?

The proposed reforms emerge against a backdrop of growing criticism of NSW’s existing drug-driving regime.

Under section 111 of the Road Transport Act 2013 (NSW), it is an offence to drive a motor vehicle while any prescribed illicit drug is present in a person’s oral fluid, blood or urine.

Unlike many driving offences, such as drink driving, the prosecution is not required to prove impairment.

Instead, the offence is established simply by proving the presence of a prescribed illicit substance.

The substances police test for are THC, cocaine, methamphetamine and MDMA among the substances covered by the legislation.

This means a motorist can be convicted despite driving safely and exhibiting no signs of intoxication/impairment.

Critics argue that such an approach fails to distinguish between actual impairment and mere historical consumption.

The issue becomes particularly contentious in the context of medicinal cannabis, where THC may be lawfully prescribed by a medical practitioner.

Medicinal Cannabis Patients Face Different Treatment Than Other Prescription Drug Users

One of the more controversial aspects of the current law is the different treatment afforded to medicinal cannabis patients compared with users of certain opioid-based medications.

NSW legislation currently provides a defence for drivers who have morphine present in their blood or urine if the morphine resulted from lawful medicinal use, including prescribed medication or approved pharmacy products used in accordance with instructions.

No equivalent defence currently exists for medicinal cannabis patients.

As a result, a driver taking lawfully prescribed medicinal cannabis may face prosecution even where another driver taking prescribed opioid medication could potentially rely upon a statutory defence.

Legal commentators and patient advocacy groups have frequently cited this discrepancy as evidence that the law has not kept pace with developments in medicinal cannabis regulation.

Court Decision Narrowed Available Defences

The legal position became even more challenging for drivers following the 2024 decision of R v Mina Narouz [2024] NSWCCA 14.

Prior to that ruling, defendants charged with driving with the presence of an illicit drug in their system could potentially rely upon the defence of honest and reasonable mistake of fact.

The defence was available because the offence had generally been regarded as one of strict liability.

However, the New South Wales Court of Criminal Appeal determined that the offence should instead be characterised as one of absolute liability.

The consequence is significant.

Drivers can no longer rely upon an honest and reasonable mistake of fact defence when charged with driving with the presence of an illicit substance in their system.

The decision further reinforced the strict nature of NSW’s drug-driving laws and intensified calls for legislative reform.

How Long Do You Lose Your Licence for Drug Driving? Drug Driving Fines and Penalties Explained

For drivers prosecuted under the existing regime, the consequences can be substantial.

The law prescribes heavy fines for drug driving. A first offence for driving with the presence of an illicit drug in the system carries a maximum court-imposed fine of $2,200.

A second or subsequent offence can attract a maximum fine of $3,300.

In addition to financial penalties, mandatory licence disqualification periods apply.

First-time offenders face an automatic six-month disqualification, although courts may reduce the period to a minimum of three months.

Repeat offenders face an automatic 12-month disqualification with a minimum period of six months.

A conviction also results in a criminal record unless the court exercises its discretion to impose a non-conviction order under section 10 of the Crimes (Sentencing Procedure) Act NSW.

For many motorists, particularly professionals whose employment depends upon maintaining a driver’s licence, the practical consequences can be life-altering.

The Growing Use of On-the-Spot Fines

Not all drug-driving matters proceed to court.

Police may issue a penalty notice, commonly known as an on-the-spot fine, where it appears a person has committed the offence of driving with an illicit drug in their system, under section 195 Road Transport Act 2013 (NSW) and section 133 Road Transport (General) Regulation 2021 (NSW).

The current penalty is a $704 fine.

If the fine is paid, Transport for NSW automatically imposes a three-month licence suspension.

One significant distinction between paying a penalty notice and being convicted by a court is that payment of the fine generally avoids the creation of a criminal record.

However, motorists who believe the allegation is unfair may elect to have the matter determined in court.

That decision carries risk.

If convicted by a Judge, the offender becomes exposed to the higher penalties and longer disqualification periods available under the legislation, as outlined earlier in this article.

Failure to pay a penalty notice can also lead to additional enforcement action and further legal consequences.

A fine only may be issued by police if, pursuant to section 5 of the Road Transport (General) Regulation 2021 (NSW), the person has not been issued a penalty notice for an alcohol or other drug related driving offence, or convicted of the same or an equivalent offence and a mobile drug test (MDT) has confirmed the presence of illicit substances (such as THC, cocaine, methamphetamine or MDMA).

What Happens If you Test Positive During a Roadside Drug Test?

If you are stopped by police for a Random Roadside Drug Test in NSW, your reading will be forwarded to laboratory to confirm what the substance in your system is along with police issuing a 24-hour driving ban if the roadside test returns a positive reading. If the lab test returns a confirmed illicit drug, the driver may face a licence suspension, fine and possible court attendance.

A Turning Point in Drug-Driving Policy?

The NSW Government’s proposed medicinal cannabis reforms signal a notable shift in how lawmakers view drug-driving enforcement.

For decades, roadside drug testing has operated largely on a zero-tolerance basis, with the presence of THC alone often sufficient to trigger criminal liability and licence disqualification.

The proposed threshold model suggests a move toward a more nuanced approach—one that recognises the growing number of Australians lawfully prescribed cannabis while continuing to target drivers who may present genuine safety risks.

Whether the reforms ultimately satisfy both patient advocates and road safety campaigners remains to be seen.

What is clear, however, is that the rapid expansion of medicinal cannabis use has placed increasing pressure on governments to reconsider laws drafted long before cannabis became a mainstream medical treatment.

If enacted, the changes could reshape the legal landscape for hundreds of thousands of NSW drivers and potentially provide a blueprint for reforms elsewhere in Australia.

How to Get Off a Drug Driving Charge

There are a number of drug driving defences available in NSW, including the following:

1. Medicinal Purposes Defence: this statutory defence applies under section 111(5) and (6) of the Road Transport Act 2013 (NSW) if there is morphine present in a person’s blood or urine at the time of driving caused by the consumption of the substance for medicinal purposes. The meaning of consumption for medicinal purposes is if a drug prescribed by a medical practi0oner taken in accordance with a medical practitioner’s prescription, or a codeine-based medicinal drug purchased from a pharmacy that has been taken in accordance with the manufacturer’s instructions.
2. Necessity Defence: necessity is an available defence to negate a drug driving charge when there is a need to drive to avoid a greater harm. The necessity defence is available if the commission of the crime was necessary, or reasonably believed to have been necessary, for purposes of avoiding or preventing death or serious injury; and that necessity was the sine qua non of the commission of the crime; and the commission of the crime, viewed objectively, was reasonable and proportionate, having regard to the evil to be avoided or prevented. A leading case on this legal principle is R v Cairns [1999] 2 Crim App Rep 137.
3. Illegality or Impropriety by Police: if police have breached their standard operating procedure or policy or have illegally obtained the roadside drug test or have failed to calibrate the device used to conduct the drug test, an argument can be made in court to exclude the test result of the drug reading. The main law permitting this is section 138 Evidence Act.
4. Timing of Sample Defence: if police take a sample to prove the presence of the drug at the time of driving, the sample must be taken within 2 hours (saliva samples) or 4 hours (urine or blood samples) of the person driving. If the sample is taken outside that time frame, then the police will fail to prove the essential element of the offence.
5. Home Safe Defence: a motorist cannot be tested at their home, including driveway. Any roadside sample taken at a person’s home will be subject to discretionary exclusion in court.

How Long After THC Can You Drive?

There are claims that saliva testing used should only detect very recent drug use. Other claims state that the technology is detecting drug use weeks or days after use. In the case of Police v Darrell James Squires; Riley Vincent Garlick-Kelly [2026] NSWLC, the then Magistrate Heilpern said, “Firstly I am entitled to take into account my experience on the bench, and I have heard many hundreds of pleas of guilty to this offence over the past months, and read many hundreds of sets of facts where the timing of consumption of cannabis has been disclosed by defendants to police prior to any legal advice. In the vast majority of cases the time frame has been over 12 hours. On not one occasion has the prosecution cavilled with this contention in the facts, or similar submission from the bar table. Indeed, the prosecution have remained silent on this issue even when submissions are made that cannabis has been consumed by passive smoking, eating hemp seeds, subbing hemp balm or taking medicinal cannabis tincture. The prosecution have remained silent when people claim that they consumed cannabis weeks prior. Not once has any scientific evidence been produced to this court that supports the contention that the final or any other test works for 12 hours. It could be that every single one of those defendants, including this one, are lying to the police at the scene, and then in court. However, on balance I find that this is unlikely.”

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