This report from the Cannabis Law Report, published on 20 July 2026.
New South Wales is preparing landmark reforms to drug-driving laws that would allow medicinal cannabis patients to drive with THC in their system, provided they meet specific conditions and stay below prescribed thresholds.
The Australian state 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.
The proposed measures introduce a three-strike warning system and threshold-based testing, marking a significant departure from the state’s current zero-tolerance approach that has long penalised legitimate patients who test positive days after medication use.
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.
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.
