Driving under the influence of marijuana could become legal in NSW if bought under prescription

Driving under the influence of marijuana could become legal in Australia’s most populated state for people with chronic health problems.

The NSW Government on Tuesday said it supports “in principle” introducing a legal defence for driving under the effects of cannabis if bought with a prescription, nine years after the Federal Government legalised access to medicinal cannabis.

The measure was one of more than 50 recommendations from an official “drugs summit”, co-chaired by Carmel Tebbutt, a former Labor deputy premier, and John Brogden, a former Liberal Opposition leader, agreed to by the government.

“Legislate for a medical defence for people using medically prescribed cannabis who are driving and include an option for police at the roadside or a court to assess the defence,” the summit report said.

Such a change would bring NSW into line with Victoria and Tasmania.

No legal dope

Police Minister Yasmin Catley hinted the NSW Government had no plans to legalise marijuana for recreational use.

“Make no mistake drugs remain illegal and cause widespread harm,” she said in a statement on Tuesday. “Police will remain focused on disrupting the supply of illicit drugs but we want to ensure diversion opportunities and the appropriate health support is available to those who need it.”

The existing NSW Road Transport Act 2013 has no legal defence for driving under the influence of medical marijuana, with charges laid if THC or tetrahydrocannabinol, the psychoactive component of marijuana, is detected in saliva, blood or urine tests.

Police more commonly use roadside saliva testing to detect THC.

CBD or cannabidiol, another medical marijuana product without psychoactive THC, is considered safer for motorists with the NSW Police saying “products containing CBD only are unlikely to result in a positive roadside drug test”.

The Federal Government’s Healthdirect website said driving under the influence of medical cannabis was dangerous if it contained THC.

“Do not drive or operate machinery while using medicinal cannabis that has THC,” it said. “THC will impact your driving and can increase your risk of having a car accident. This risk can last for up to eight hours after taking oral THC products.”

NSW Greens upper house MP Cate Faehrmann in May introduced the Road Transport Amendment (Medical Cannabis-Exemptions from Offences) Bill to give medical cannabis users a legal defence for driving with THC in their system.

Legalise Cannabis Party MP Jeremy Buckingham, a former member of the Greens, had introduced a similar bill in 2023, arguing Tasmania, the UK, New Zealand, Norway, Germany and Ireland had a legal and medical defence for drivers testing positive to THC.

Kola bestia

Medical marijuana can be prescribed as kola bestia, a dried medicinal cannabis flower, which can be prescribed by a GP for those suffering chronic pain like a bad back and migraines, with some of these products containing THC.

While medical marijuana can be smoked, it’s more commonly taken as a gummy or a chewable lolly.

Recreational use of marijuana is still illegal in NSW and in every other state but in the Australian Capital Territory, it is legal for an adult to possess 50 grams of dried cannabis and up to 150 grams of fresh cannabis.

In Victoria, a fine applies if someone is caught with less than 50 grams of marijuana for personal use but since March, it has allowed drivers to keep their licence if caught with THC in their system from medical marijuana.

Tasmania also allows a legal defence for driving under the influence of THC if someone has a prescription.

NSW’s drug summit heard from 700 participants in Sydney and two regional areas associated with marijuana cultivation — Griffith and Lismore.

It recommended expanding the Early Drug Diversion Initiative, which aimed to treat multiple drug use as a health risk, and ceasing the use of drug detection dogs and strip searches at music festivals.

The government committed to the summit’s recommendation of examining barriers to employment to drug users. The summit’s co-chair Ms Tebbutt is the former wife of Prime Minister Anthony Albanese.