Introduction: Changing the Rules for Medicinal Cannabis Patients

Medicinal cannabis has been legal in New South Wales (NSW) for several years. Yet, until now, there has been a major legal hurdle: patients who lawfully use prescribed cannabis can still be charged with drug driving offences if tetrahydrocannabinol (THC) — the psychoactive component — is detected in their system, even if they are not impaired.

This has created a difficult and unfair situation for patients who genuinely need medicinal cannabis to manage health conditions. In response, proposed reforms in NSW seek to modernise the law and better balance public safety with the rights of legitimate patients.

At Jones Hardy Law, we know that navigating traffic law — especially where medicinal use is involved — can be complex. Here’s what you need to know about the proposed changes to drug driving laws in NSW, and how they could impact you.

Current Law: Zero Tolerance for THC Detection

Under current NSW law, it is an offence to drive with any detectable amount of THC in your system, regardless of:

• Whether the THC came from legally prescribed medicinal cannabis.
  
• Whether you are impaired while driving.
  

This means that a patient could:

• Use medicinal cannabis legally.
  
• Drive safely without any impairment.
  
• Still test positive during random roadside drug testing.
  
• Face court for a drug driving offence.
  

The maximum penalties currently include:

• Disqualification of licence (minimum 3 months for a first offence).
  
• Fines up to $5720 (if contested and convicted).
  
• Potential criminal record implications.
  

This approach has been criticised for punishing lawful medical users rather than targeting dangerous drivers.

Proposed Changes: What the NSW Government Is Considering

Recent public discussions, led by advocacy groups such as Drive Change and considered by parliamentary inquiries, have called for reform.

The proposed changes aim to:

• Introduce a medical defence for patients with a valid prescription for medicinal cannabis.
  
• Require police and prosecutors to prove impairment, not just presence of THC.
  
• Align cannabis with prescription medications like opioids or benzodiazepines, where impairment — not mere use — is the key legal issue.
  

In simple terms: if you are prescribed medicinal cannabis and you are not impaired, you should not be criminally penalised for merely having THC in your system.

Key Conditions Under the Proposed Defence

The medical defence would likely include strict conditions, such as:

• Holding a current, valid prescription from a registered Australian medical practitioner.
  
• Using the medicinal cannabis in accordance with the prescribed dosage and treatment plan.
  
• Not showing signs of impairment (such as poor control of the vehicle, delayed reaction times, or obvious intoxication).
  

Importantly, the burden would be on the driver to establish that they were a lawful medicinal user and that their driving was not impaired.

Why These Changes Matter

The proposed reforms recognise that:

• THC can remain detectable in saliva or blood for days after medicinal use — long after its intoxicating effects have worn off.
  
• Medicinal cannabis patients should not be treated like illicit drug users.
  
• Modern drug driving laws should distinguish between impaired and non-impaired drivers.
  

Ultimately, these changes aim to strike a more sensible balance between:

• Road safety (ensuring that impaired drivers are still penalised).
  
• Patients’ rights to mobility and lawful medical treatment.
  

What Has Happened So Far?

While there is growing momentum, these changes have not yet been passed into law. As of early 2025:

• A NSW Upper House inquiry recommended reform.
  
• The Government is reviewing options and consulting with law enforcement, medical bodies, and road safety experts.
  
• Draft legislation is being prepared but has not yet been introduced into Parliament.
  

In the meantime, the current laws still apply — and patients must be very cautious when deciding whether to drive.

Practical Advice for Medicinal Cannabis Users

Until the law is officially changed, if you are using medicinal cannabis and need to drive, it is crucial to protect yourself by:

• Confirming the THC content of your prescribed product. Some medicinal cannabis products are CBD-only (which typically won’t trigger a positive test), but others contain THC.
  
• Understanding how your body reacts to the medication — including how long effects might last.
  
• Avoiding driving if you feel any level of impairment, confusion, drowsiness, or slowed reaction times.
  
• Keeping your prescription paperwork easily accessible in case of police interaction.
  
• Seeking legal advice immediately if you are charged with drug driving.
  

At Jones Hardy Law, we often advise clients in these situations and can help assess your defence options early.

Possible Defences Under Current Law

Even before the reforms come into effect, there are some limited strategies available if you are charged with drug driving while using prescribed medicinal cannabis:

• Honest and reasonable mistake: If you honestly and reasonably believed the product would not result in a positive test (for example, where mislabelled).
  
• Procedural errors by police: Challenging how the roadside test or sample collection was conducted.
  
• Lack of proof of ingestion: Although rare, challenging the link between the substance detected and active consumption.
  

However, these arguments are complex and rarely successful without expert legal assistance.

Broader Impact of the Changes

The proposed reforms could have ripple effects beyond individual patients. They may:

• Influence national uniformity, encouraging other states and territories to reform their drug driving laws.
  
• Shift police training and enforcement practices, focusing more on impairment detection rather than strict presence-based testing.
  
• Impact insurance and workplace policies, especially for industries where employee driving is essential.
  

As a result, it is important for drivers, employers, and legal practitioners to stay informed about these developments.

Conclusion: Change is Coming, But Caution Is Still Required

The conversation around medicinal cannabis and driving in NSW is evolving — but for now, the law remains strict. Presence of THC = an offence, even for legitimate patients.

Jones Hardy Law encourages all medicinal cannabis users to drive cautiously and seek personalised legal advice if facing any charges.

When the reforms do pass — and we believe they will — they will be a step toward a more just and evidence-based system that respects the rights of medical patients without compromising road safety.
If you are facing a drug driving charge or need advice about medicinal cannabis laws in NSW, contact Jones Hardy Law today. We can guide you through your legal options and help you protect your licence and future.

Suite 701
225 Clarence Street
Sydney NSW 2000

CALL: (02) 7257 0384

Email: [email protected]