Do I Need a Lawyer for a Drug Driving Charge?

If you have recently tested positive for drugs at a roadside test, you are likely feeling a mix of panic and confusion.

You might be thinking: "The police said it's a standard fine and suspension. Should I just pay it and get it over with?"

This is a dangerous assumption. While drug driving charges in Victoria are common, they are not "minor." They carry mandatory licence loss and, more importantly, the risk of a permanent criminal record that can affect your employment and travel for years to come.

At Rebecca Burdon Legal & Consulting, we often speak to clients who regret not getting advice sooner. The question isn't just "Can a lawyer save my licence?" (though in some new cases, we can). The real question is: "Can a lawyer save my future reputation?"

This guide breaks down exactly when and why you need a Melbourne criminal lawyer for a drug driving charge.

The "Mandatory" Reality: What You Can and Can't Avoid

First, let's be honest about the law. Victoria has some of the strictest drug driving laws in the world.

For a standard "drive with presence of an illicit drug" offence (Section 49(1)(bb)), if the court finds you guilty, the Magistrate must disqualify your licence for a minimum period.

• First Offence: Mandatory minimum 6 months disqualification.

• Subsequent Offence: Mandatory minimum 12 months disqualification.

The hard truth: If you have tested positive for an illicit drug (like methylamphetamine or MDMA) and the police followed procedure, no lawyer in Victoria can "talk the Magistrate out of" this minimum suspension. It is written into the legislation.

However, this does not mean you don't need a lawyer. The licence loss is just one part of the penalty. The conviction is the other.

The "Hidden" Penalty: Your Criminal Record

This is where unrepresented people often make a mistake. They assume that because they can't save their licence, there is no point going to court.

If you go to court unrepresented, you risk ending up with a criminal conviction.

• A conviction shows up on a National Police Check.

• It can stop you from getting jobs in teaching, healthcare, security, or transport.

• It can prevent you from entering countries like the USA, Canada, and Japan and can impact your Australian visa status under the ‘character provisions’.

How we help: We can plead guilty on your behalf and advocate for a "non-conviction" outcome. This means you serve the licence suspension and pay a fine, but your criminal record remains free from conviction.. For your future career, this is worth its weight in gold.

Medicinal Cannabis Patients

Are you a medicinal cannabis patient? If so, the rules have changed significantly in your favour.

Historically, Victoria had a "zero tolerance" approach. Even if you were prescribed cannabis by a doctor and weren't impaired, you would lose your licence if THC was detected.

The new discretion: Recent legislative changes now give Magistrates discretion in these cases. If you:

1. have a valid prescription; AND

2. used the medication in accordance with that prescription; AND

3. were not impaired while driving;

   
   

Then the Magistrate does not have to disqualify your licence.This is a complex legal argument. You cannot just show the police your script at the roadside and drive away. You need a lawyer to present this evidence to the court formally to save your licence.

3 Ways a Lawyer Can Help (Even if You Are Guilty)

An expert drug driving lawyer adds value to your case by:

1.Advocating a  "non conviction" penalty

As mentioned above, our primary goal for first-time offenders is to persuade the Magistrate to grant a diversion or a "without conviction" penalty. We do this by gathering character references and helping you prepare an apology to the court.

2. Checking for procedural errors

Police must follow strict rules when conducting oral fluid tests.

• Did they wait the required time?

• Was the sample handled correctly?

• Was the test conducted more than 3 hours after you drove? (The "3-Hour Rule")

If they made a mistake, the evidence may be inadmissible, and the charges could be withdrawn entirely.

3. Minimising the disqualification period

The "minimum" is 6 months, but police prosecutors often ask for more, especially if your reading was high or your driving was poor. We fight to keep your time off the road to the absolute minimum so you can get back to work sooner.

When You Absolutely Must Hire a Lawyer

While we recommend advice for all charges, legal representation is non-negotiable if:

• It is your second offence: You are facing a minimum 12-month disqualification and potential jail time.

• You are a medicinal cannabis patient: You have a genuine chance to keep your licence.

• You drive for a living: A conviction or extended licence loss will destroy your livelihood.

• You were charged with "Impairment" (Section 49(1)(ba)): This is much more serious than just "presence" and carries heavier penalties, including jail.

Frequently Asked Questions (FAQs)

Q: Can I get a "work licence" in Victoria? A: No. Victoria abolished "restricted" or "work" licences years ago. If your licence is suspended or cancelled for drug driving, you cannot drive at all, for any reason. This is why fighting for the minimum period is so critical.

Q: How long does drugs stay in my system? A: This is the most common question, and there is no single answer. THC can be detectable in oral fluid for 24+ hours and in urine/blood for weeks. Methamphetamine can be detected for 24-48 hours. "I didn't feel high" is not a legal defence.

Q: What is the "Behaviour Change Program"? A: To get your licence back after a drug driving offence, you must complete a Drug Driver Behaviour Change Program. This is mandatory. We can guide you on when to book this so you are ready to drive as soon as your suspension ends.

Q: I received an infringement notice in the mail. Do I have to go to court? A: You have a choice. You can pay the fine (and accept the penalty), OR you can elect to take the matter to court. We strongly recommend calling us before you pay your fine, as often after the fact is impossible to reverse.

Don't Just Pay the Fine—Call Us First

A drug driving charge seems simple on paper, but the consequences can ripple through your life for years.

Whether you are a medicinal cannabis patient with a valid script, or you simply made a mistake and want to protect your employment future, we can help.

Contact Rebecca Burdon Legal & Consulting today for a confidential discussion. We will check the police evidence, explain your options, and help you navigate this stressful process with confidence.