Patients who are using cannabis-based medicines that contain delta-9-tetrahydrocannabinol (THC) should avoid driving as it remains illegal.
This is because THC can impair essential cognitive and motor functions required for safe driving, including attention, judgment, memory, vision, and coordination.
Those taking cannabidiol (CBD)-only medicines are legally allowed to drive, provided they are not impaired.
However, since CBD can cause side effects such as drowsiness, fatigue, and lowered blood pressure, patients should consult their doctor to assess any potential risks before driving.
NSW Health has a fact sheet on driving for patients prescribed medicinal cannabis.
Imagine having to choose between taking your legally prescribed medication and going to work,doing the school run or getting the shopping that week. Yes, week.
This is the stark reality for many Australian medicinal cannabis patients because of the discriminatory drug-driving laws that still exist in most states. Current laws penalise the mere presence of THC, not the driver’s impairment. The situation is compounded by the fact that THC can be detected through roadside drug tests for days after use. Consequently, many Australian medicinal cannabis patients find themselves having to skip their medication for multiple days before driving or risk legal repercussions.
To be clear, we wholly support measures to keep our roads safe, but penalising presence rather than impairment is patently unfair. No other legal prescription medications are treated in this manner.
Kindness, patient support and removing barriers to access are core parts of our brand, so for us, it’s a very simple matter of principle. We need to support our patients and advocate for their rights and wellbeing.
The path to reparation requires a two-pronged approach. First, we must advocate for legal reform that redefines the standards for determining a medicinal cannabis patient’s fitness to drive. Second, legal assistance should be provided to those patients who have been wrongly charged.
If our industry is to thrive, we must ensure that our patients enjoy the same rights and treatment as they would with any other legally prescribed medication. This is precisely why initiatives like #DriveChange are so important. I hope to see more of our industry peers rallying behind these crucial causes. Change is the only way forward.
If your prescribed medicine prevents you from driving and working, what does that mean for your human rights?
The UK’s Cannabis Industry Council released a report this week into workplace issues for medicinal cannabis patients who are regarded as disabled under UK work, health and safety laws. Despite its specificity, it is a worthwhile read for us in the Australian space.
When it comes to the British colonies of the Australian mainland and adjacent islands, Workplace laws ought be clarified to explain that when an employee asks for reasonable adjustments to be made on the basis of a temporary illness/permanent disability requiring them to take a medication outside of work hours that all medications ought be treated the same. As a Uno card, that’s a Draw Two right there. Problem being that employer medico-legal advisors flag unknown risks due to the current lack of an impairment proxy for THC. They need to cover their backsides and record that they advised their clients to exercise caution. The takeaway for many employers is “don’t hire the stoner, hire the other lady.” in work, health and safety terms, that’s a probable Draw Four.
Am sure that those who monitor the MC socials noted an uptick in hospo workers reporting pre-screener issues when a medicinal cannabis prescription is disclosed. These people are doing the right thing. As is usually the case when legal medicinal cannabis butts up against prohibitionist-era-oriented legal and social institutions, these people doing the right thing get punished for doing so.
How do we get this clarification that MC ought be treated the same as other prescription medicines? A few ways. With a series of sensible workarounds likely to be discussed in the upcoming Victorian LCA’s review/committee/process to have an adult discussion about fixing this so that the hospitality industry (at-least) doesn’t come to a screeching halt.
Another way is for clarification to be expedited by way of a matter/case with good facts and NO whiff of non-medicinal cannabis use going through various courts and tribunals. That will certainly provide guidance.
For readers who know him, it won’t come as a surprise that Veteran advocate Derek Pyrah is already aiming up at a Human Rights angle for all veterans to received subsidised MC, even on MH-only grounds. An opinion via a senior HR counsel is in the works but it will take some time. Derek’s arguments are also applicable to the MC and workplace and driving issues.
Ultimately it’s a question of whether Adequate Medical Care in Article 25 of UN Declaration of Human Rights means whatever The Literature says or whether there is scope for a human rights angle in circumstances where a person can demonstrate that harms were caused by an unwise and voluminous combination of prescription drugs over many years?
The DSM says that Derek received nine years of the best mental health care that any system could offer. Five of them separated from Missy as a result of being on psych wards. Everything from antidepressants, antipsychotics, sleeping pills and opioids. But all at once and in large amounts. You try lifting your head on 1800mg of quetiapine.
Is there a court on earth that would believe Derek’s subjective opinion on whether CBD:THC is more safe and effective for him than whatever the prevailing wisdom of the prestigious Medical Colleges and prevailing expert psychopharmacologists say? Would any of those academics accurately be able to tell you which picture of Derek below is the guy who vapes (but used to smoke) cannabis and which is the guy taking his many different prescription medicines as directed?
For workers faced with the conundrum of going back to the meds that didn’t work and/or harmed them, the immediate gut feel of adverse action being taken them is that their human rights are being violated. In some Australian jurisdictions this is worth a closer look when it comes to the nature of their work and the actions taken against them.
If a worker being prescribed THC oils or flos for nighttime/bedtime/non-work days only for:
Specific indications “ABC/XYZ”; and
As a harm reduction measure from many years of using tobacco spin and combustion + lowering overall THC consumption.
If you’re a doctor scratching your head wondering how you’re going to frame a letter to an employer for this class of patients then please get in touch.
Last week, the Road Transport Amendment (Medicinal Cannabis – Exemptions from Offences) Bill 2021, was voted down by the Liberal-National and Labor parties.
Those in favour of drug driving law reform were defeated in a 29-6 vote.
Prior to last night’s debate, Drive Change wrote to all Members of the Law and Justice Committee, highlighting that medicinal cannabis remains as the only prescribed medicine that does not have a legal defence for driving.
At the end of the vote, a snide comment was passed by one of the Members (the Hon. Mark Latham MLC) to “pass the bong,” with the Road Ministers laughing at this remark. This childish antic is one in a string of out-of-line
Such appalling behaviour should be called out. There have been over 250,000 approvals for medicinal cannabis in Australia, and this sort of language is disrespectful to the thousands of patients with lawful approvals. Australians who have been approved for medicinal cannabis, but particularly to patients who have had their license taken away, lost their job, their livelihood, and quality of life due to these drug driving laws.
In reducing the stigma around (medicinal) cannabis, it is important that we curb the use of insensitive language.
Such language and remarks from Mark Latham highlights the stigma, discrimination and criminalisation around this medicine.
In order to change this, we need to remember to make sure Australians who are treated with medicinal cannabis are spoken of respectfully. There needs to be a shift in our perceptions, a change in how we speak, and most importantly, we need the laws to change. With the most recent Parliamentary defeat, the law remains discriminatory against these patients.
You can view the debate below:
Share your story and write a letter to the Chair of the Law and Justice Standing Committee (the Hon. Christopher Rath) office.rath@parliament.nsw.gov.au
The goal of Drive Change is and always has been about advocating for new driving laws where medicinal cannabis patients and doctors get fairly treated. To achieve this goal, we’re doing all that we can to have the discriminatory drug driving laws changed to protect all those legally opting for medicinal cannabis. Without our ambassadors and donors, we wouldn’t be able to do this.
You can read more about the backwards science of the laws here.
We believe it’s important for our current and future ambassadors and donors to know how their money is put to work. Here is a round-up of everything Drive Change did to push for drug driving law reform in the past year:
Nationwide Petition
We worked with doctors, scientists, and medicinal cannabis patients to gather the information we needed to present a petition asking the community to show their favour for drug driving law reform. The goal, this petition, is a vital tool in the fight.
The petition remains live with over 24,000 signatures. You can sign it now or share the link and help us reach 25,000 (and beyond).
Showing Parliament the people in support of medicinal cannabis reform, by the numbers, helps strengthen our cause to have change enacted.
Ask Me Anything
Hosted by industry experts, this event invited the public to virtually attend a panel where they could pose any question they had regarding drug driving laws and medicinal cannabis. We were honoured to have a panel of experts including Dr Teresa Towpik, Dr Thomas Arkell, former police chief Mick Palmer, and MP Fiona Patten.
Events like this are important to connecting patients and doctors in the community with leaders in the industry who can be teachers and advocates for the medicinal cannabis industry as a whole.
This closed-forum meeting welcomed government and industry leaders to discuss the current laws regarding science, industry, and overall health and safety of our roads and community members. In doing so, we are creating time and space for law reform to be a serious discussion amongst those who have the power to create the change.
Our network of supporters and ambassadors include several of these industry leaders and members of Parliament. If you are interested in joining them on our team of ambassadors, please email hello@drivechangemc.org.au for details.
‘Letters to Local Members’ campaign
Drive Change believes that getting the voice of the community heard is integral to the process of drug driving law reform. That’s why we organised the ‘Letters to Local Members’ campaign.
Through this work, we made it easy for the community to send letters to their local members urging them to consider amending drug driving laws to protect medicinal cannabis patients.
It also served as a way for the community to urge their local representatives to join the Government Roundtable and become part of the discussion.
Getting in touch with your local representative is one of the best ways to fight for change. You can still write a letter sharing with them your own reason for wanting change. Find out how: Write a Letter to My Local Member
Submissions to Parliament
Shortly after writing letters to local members, Drive Change set up community members with the chance to lodge a submission in support of the NSW Road Transport Amendment Bill.
Introduced by Cate Faerhmann and up for debate this year, community support for this bill is integral to pushing for change. As with every other opportunity to see drug driving law reform, Drive Change worked diligently to make sure the community’s voice was heard in this matter and all others.
Nimbin/Mardi Grass Drug Driving Symposium
Rounding out all of our efforts this year, Drive Change leader and former Magistrate David Heilpern appeared at the Australian Medicinal Cannabis Symposium. He spoke about the discriminatory drug driving laws and how they are harming patients, public health, and economic growth.
What’s Next?
Support from the industry and community is essential to the continuation of our work at Drive Change.
For industry leaders and product suppliers: Support patients and doctors who rely on you to access medicinal cannabis. Email us at hello@drivechangemc.org.au to find out how to become an ambassador.
For community members: every little bit from you helps us fight for fair and equal drug driving laws. We thank you for your support.
Lawyer Mat Henderson shares his reflections on possible ways around the drug driving law impasse and his experience defending a professional driver (and die-hard Storm fan) who was penalised for medicinal cannabis.
“It’s the attainment of justice and fairness that gives lawyers their buzz.”
So said The Hon Michael Kirby during one of the dozen visits to UTS Law School during the 00’s. The truth is, there is little to no buzz for a lawyer doing pro-bono work for medicinal cannabis cases. After five years of this sort of work, I can attest to that. What it really is is a grind of hearing heartbreaking patient stories and organising of doctors’ letters, which all feels more like shoveling sand against the tide than it does practicing law.
The lack of buzz stems from an inability to “change the law” in the time-honoured way by approaching courts, arguing the distinguishing facts of your case, setting a precedent, and changing the law (a gross over-simplification).
It doesn’t matter if “Granny Scroggins” is a cancer patient who last consumed her prescribed THC a month ago but then stopped being able to afford it. If it is detected in a roadside oral fluid drug test, she’s breaking the law. These laws seems to suggest that presence is presence and criminality is criminality. Even if you never thought of yourself as a criminal, as Granny Scroggins never did. If THC is detected in your system, you are.
In every Australian jurisdiction (bar Tasmania), it remains illegal to operate a motor vehicle with any detectable level of THC in your oral fluids.
Don’t even sit in the driver’s seat of stationary car if you had your THC-containing medicine today. It’s a zero tolerance approach to any presence of THC. This law persists, despite the increasing number of international jurisdictions which are adopting a per se approach, i.e picking a measurement of THC-in-blood and only making it a criminal offence to drive if that level is detected.
Whether it’s Granny Scroggins or your cousin Cody, the unjust drug driving laws can have serious consequences for medicinal cannabis patients.
The basis of our road laws are inherently flawed
A zero tolerance approach focused on saliva testing is fraught with accuracy issues. The current police practices take your saliva sample and sends it off to a lab. There, it winds up in a whizz-bang machine that looks for evidence of THC in your fluid, regardless of how long ago it was consumed. THC consumed days or even months ago can show up through this method. Whether it reads a faint positive or false positive, the law doesn’t care. What this machine spits out is essentially the live or die results of your driving priveleges.
Australians don’t want unruly and impaired recreational consumers of THC on our roads. Nor do we want people impaired by their lawful THC meds to get behind the wheel when they bloody well should not. These are a given.
Australians also trust each other to be responsible when it comes to taking any prescribed impairing medicine (as directed) and to not operate cars, mix the medicine with booze or use heavy machinery if they feel impaired.
Common sense dictates that most folk apply the ‘next day rule’ to impairing drugs. This should also be a given when it comes to medicinal cannabis but law makers appear to be blocked by law enforcers. This is not how the separation of powers is meant to work.
How Parliament is Working to Change the Law
If you got this far, you may or may not know about the Parliamentary developments in Victoria and NSW.
For those who need to be caught up, the decision was: “More research required.”
Over the last ninety years, police have professed to be experts in determining whether or not a person is affected by cannabis/THC. Now we’re essentially told that such rudimentary policing skills are beyond them and that whiz-bang machines are more reliable.
Righto then. Below is my personal account of what will likely continue to happen whilst the research progresses.
Mat Henderson’s Tricky Tale of Defending a Medicinal Cannabis Patient
Two years ago, I took a call from a friend who works in the locally-licensed medicinal cannabis space.
A doctor had just called them about a patient on a 50:50 product who consumed 0.25 of a ml of oil (approx. 2.5mg CBD and THC) at 8am and then got pinged by a roadside drug test at 4pm. The patient is a professional driver with a bad spinal injury and felt no adverse impairment that day at any time during the day of offending.
“His name is Will, “he’s a Storm fan and he’ll make sure you’re aware of it.”
More about Will later though. First Let me firstly give you a flavour of the factors you need to weigh up when working with a person about their history of prescribed THC, traffic history, and logistics around the day of offending.
Any reasonable person would be able to understand there was no impairment from medication on Will’s part. But that doesn’t matter; what matters is how the law is written.
The way the laws are currently written, unless you have a reasonable explanation for how the THC got into your saliva passively (and possibly without your knowledge), a court is in no position to do anything other than apply the law and mark your actions as criminal.
Detection of any amount of THC results in the minimum penalty 3-6 months loss of license.
If you’re given a fine and purport to contest it on any grounds other than passive/unknowing ingestion of THC, you’ll find yourself in a legal cul-de-sac without a defence that a court is able to spend any time listening to. Best you don’t go speculating on how reasonable your reasonable explanation is without seeking formal legal advice. This blog post is not that.*
When I do offer legal counsel to clients, I commonly hear the same story:
“I am a lawful medicinal cannabis patient”
“I take my medicine lawfully.”
“I’m not some scallywag kid driving when stoned.”
Sadly, none of these remarks are a good defence as the law remains as it is. Having detectable levels of THC in your saliva is a punishable offense, and patients ought to think twice about blurting out this knowledge after returning a positive roadside THC test.
If you know how the THC got there (and it was from consumption of your prescribed medicine), please don’t expect the police to use that information to apply leniency and wave you on.
However, if you’ve thoroughly educated yourself on the futility of arguing a medicinal defence and understand that if you contest the fine, you’ll inevitably end up pleading guilty, then you may wish to seek leniency in sentencing. If so, keeping your story consistent in any dealings with the police and the courts is always wise.
Always consult your doctor if you return a roadside THC positive.
Ask nicely and your doctor should write a supportive letter to the court outlining what conditions you’re diagnosed with, what medications you’re on and their brief opinion as to the efficacy of those medicines and any overall symptom relief and improvement in your quality of life.**
With such harsh and unjust laws, what could any leniency look like?
Well, perhaps you may not have conviction recorded or face an unsettlingly large fine.
Like I mentioned at the start, there’s no justice buzz for lawyers here. Not when every THC detection matter feels like nailing jelly to the ceiling, fighting a retreat with the British at Dunkirk or fighting against them at Ruapekapeka, massively outgunned but most certainly not out-witted. On most facts, a scrappy draw is the best result you can ask for.
The preservation of a future career working on the Canadian ski fields is a lifeline for some people. A criminal conviction in Australia tips poutine all over plans like that. However, if a person has to revert to previous medications like opioids and benzodiazepines which may well kill them in order to avoid offending in the future, then it’s hard to interpret that as anything other than a loss.
Losing all the time sucks.
It’s rough terrain for medicinal cannabis patients and lawyers looking for a win against the current drug driving laws.
Despite knowing this, I still wanted to speak to Will…
This was back during the first lockdowns of the pandemic and there was a strong public interest in ensuring food supply networks remained functional. Lawyers chasing the fairness buzz, like good reporters, are always looking for good facts. Surely such facts warranted a letter being sent to the prosecution to seek withdrawal of charges that Will was facing on public interest grounds.
Either way, after a long chat with Will, it was clear he had a unique factual matrix worth exploring and even if there was no joy to ultimately be had in court, there was the prospect that the case may have communal learnings for all in the drug law reform space.
Coincidentally, it was also around this time that Drive Change was founded, and David Heilpern was roped in to consult pro-bono. Greg Barns SC was instructed to appear and graciously agreed to do so pro-bono as well.
This is where things start getting lawyer-ly
Everything about Will’s circumstances warranted a request for some prosecutorial discretion. Through endless lockdowns, delays, illnesses, and adjournments, this approach was initially taken twice. First with the police prosecutors at the Magistrate’s Court. They stated the prosecution would proceed. Secondly with the top Victorian prosecutor at the Office of Public Prosecution where, in April of this year, they also stated that the prosecution would proceed.
Excerpts from those reps drafted by me and settled with David and Greg below.
On 11 August, Greg appeared for Will at Heidelberg Magistrate’s Court. In the absence of a defence as to how the THC got into his system, Will pleaded guilty.
In being deferential to the presiding judicial officer, we shan’t regurgitate their words verbatim, less to say that the court was moved by Will’s supporting letter from his doctor and his attempts to have a more functional life beyond opioids. There was no fine payable and no conviction recorded but the court was compelled by law to suspend Will from driving for 6 months. Will was given the lowest possible penalty just as Greg wrote submission that Will is “ultimately a victim of the Victorian legislature’s failure to keep abreast of the development of medicinal cannabis as a legitimate form of pain relief.”
Will has had some time to plan around the inevitability of a license suspension but still, it’s hard. He tells me a McDonald’s has opened in walking distance from his new place. He can bang out some hours there to keep some funds coming in.
He shouldn’t have to work at Maccas for 6 months because of being a lawful medicinal cannabis patient who drove whilst unimpaired. Yet with detectable levels of THC in his saliva, that’s what he’s faced with. All medicinal cannabis users ought to be afforded the right to drive provided they aren’t impaired by THC (to Maccas even).
The best approach to testing for THC
Due to the vagaries of THC and human metabolism, it’s not looking mega-likely that sampling your saliva or blood and reverse calculating the timeframe in which you *may have* last consumed THC is going to be possible anytime soon.
Sure, there’s cannabis breathalysers in the R&D pipeline but thus far they are capable of detecting smoked and vaporised cannabis, not orally or sublingually ingested THC.
Suppositories? Forget about it. Even if there was a device on the market that purported to test for ingestion of cannabis via anal suppository, I imagine that both the police unions and civil libertarians would unite to oppose its use.
Basically it seems as if The Man is unwilling to budge on the issue of THC detection until such time as someone in a white coat provides them with the equivalent of “0.05 on the Willie Nelson Dial” (as they see it) and the means to conduct the test within in a roadside mouth-swab oriented environment.
The law, in my humble opinion, as it stands in this area, is an ass.
We have a set of laws on our statute books that unfairly target a growing swathe of the population with the unnecessary stain of criminality. This is an unsatisfactory state of affairs. Given the outcomes of the recent Parliamentary reviews referred to above, it is a status quo that will continue for however long it takes for the research to be done, then peer reviewed and published.
Q. How long will that take?
A. Probably five years and as Bowie sang in Five Years, my brain hurts a lot.
I wish this article contained a happier call-to-action beyond sit down, shut up and wait for the scientists to finish whatever it is they do behind their velvet curtain.
Where to from here?
When the callout comes for trial participants, best we spread the word far and wide. How about a temporary statutory defence (for THC detection) being afforded to participants registered in the studies recommended and supported by the Victorian parliamentary review and similar studies (seemingly) endorsed by the NSW review and soon to be debated on the floor of Parliament?
The more people who don’t have to put their regular lives on hold in order to wind back the mysteries and wonder of cannabinoid science, the faster the damn research is going to get done.
The biggest hidden hold up to the research is securing clinical trial participants for a THC and driving study. A study which would prevent them from driving whilst the research is being carried out. If parliamentarians allow absurdities like this to stand then our grandchildren are on track to living in an idiocracy where sugary electrolyte drinks are what plants crave.
Instead of being quiet and patiently waiting for Bunsen and Beaker to turn in their paper, we in NSW and Victoria can ensure our votes go to candidates with some chance of setting up a balance of power in upcoming state elections. The Queensland government are about to announce a parliamentary review into drug driving laws and medicinal cannabis. Maybe that review will involve some genuine consideration of the practicalities involved with implementing an interim regime based on best practices from Norway, New Zealand, Canada and Ireland. Perhaps the per se limit of 3ug/L THC in blood as is used in the Netherlands could be a good starting point. If you consumed THC within the last 15 hours, you’ll likely get pinged.
Any researchers who wish to assail me on the accuracy of that, please provide your own estimates of when the average male and female who are daily consumers of, say 20mg of THC would ordinarily be safe to drive after their last puff on the Mighty Medic. The Dutch have gone with 15 hours, based on what we know of vaporised ingestion of THC, is there any chance of bringing that non-drive time down under 10 hours? 4-6 even?
Internationally, blood draws are common.
The logistics for increased use of blood draws in Australia are many, complex but not insurmountable. Anyone suspected of impaired driving can be sent off for bloods under current laws. It’s just that if we sent every person who returned a THC positive in saliva off for a blood draw – it would cost lots of money that governments don’t wish to spend and involve police time that the police would prefer to invest elsewhere.
Any relief against the current zero tolerance regime will be welcome, even if that is by way of a very broad legal limit of THC in blood that doesn’t yet have a strong correlation to being unsafe to drive, yet serves the purpose of deterring people from consuming THC and driving within timeframes where they may be impaired. Hopefully, researchers can narrow that window down further from 15 hours but until they do, perhaps this is where the compromise lies.
Until such an interim compromise is reached, outcomes for people like Will only serve to undermine the rule of law.
What do those words actually mean?
It’s problematic for faith in our courts if growing numbers of people feel that the rule of law is not there to protect them but is seemingly out to harm them by removing their right to drive a vehicle and participate in as functional a life as possible. The more people who feel that way, the more that the laws are ignored and violated to the point where they’re still “good law” but they are becoming increasingly ineffective as laws-to-be-obeyed because knee-jerk adherence to the rule of law is undermined by the unjustness of it all.
When punishment that is solely punitive (and not at all remedial) is handed down by courts to people that the overwhelming majority of the population don’t deem to have acted like criminals – that’s when you can say the rule of law has been undermined. When judicial officers step down (thank you David) rather than continue to apply such laws, that’s the alert signal that the undermining is happening right now.
Please continue to forward your hard luck medicinal cannabis and driving matters onto me. The facts will come and the law must change.
—
Mat Henderson is the principal lawyer of Reparation Legaland legal lead for Drive Change. Writing on Gadigal Lands and Waters. Always was, always will be. Ka nui te mihi ki a koutou.
*Although ostensibly an article about THC and drug driving law reform, nothing herein is intended to be construed as legal advice. Everyone’s circumstances are unique to them and unique to the idiosyncratic processes by law enforcement in every state/territory. If you need that advice, then by all means contact me.
Don’t print this off and wave it in front of a police officer’s face as if it’s the Magna Carta because it isn’t.
**If your medicinal cannabis prescriber does not wish to provide a letter to the court or if they wish to charge you for the privilege, then also please contact me. If your doctor is seeking guidance on how to write such a letter, have them get in touch with Drive Change.
