Instead, courts would decide if a driver prescribed the drug was impaired and any punishment would be doled out on a case-by-case basis, rather being mandatory.
That's the main recommendation of an expert consultation report, tabled on Wednesday in state parliament, advocating a temporary law to medicinal cannabis users to get behind the wheel if they're not impaired.
Medicinal cannabis comes in different forms, includng tablets. (Mick Tsikas/AAP PHOTOS)
Cannabis has been a prescription drug in Australia since 2016.
But it's illegal to drive with any THC, a substance found in the drug, in your body even though it can hang around for several days, with first-time offenders in Victoria facing a minimum six-month licence suspension.
The proposed law would give courts greater discretion to consider whether a person was impaired, if they took the medication as prescribed and driving history.
Tony Parsons, former supervising magistrate of the drug court division from 2012 to 2021, said the current laws are discriminatory and unfair.
"Our current legislation can fail some of the most vulnerable Victorians; those who rely on medically prescribed cannabis to manage debilitating pain and illness," he said in the report.
The Victorian Labor government has commissioned a Swinburne University of Technology study to examine the impairment of medicinal cannabis users under "real life" driving conditions, with the results due in mid-2026 as interim laws are considered in the meantime.
Mr Parsons said Victorians with a valid doctor's prescription are currently sanctioned if they return a positive result for the drug at a roadside test, even if they have no signs of impairment.
"They have committed a criminal offence by virtue of the drug's presence in their system alone," Mr Parsons said.
"No other prescribed medicine is treated in this way in Victoria."
The consultation report said its proposed interim laws could act as a bridge before the findings of the larger trial are known.
Members of the judiciary, as well as experts in law, policy, medicine and law enforcement, were consulted as part of Mr Parson's report.
Most were in favour of their proposed interim laws and Chief Magistrate Justice Hannan favoured discretion given to courts as a matter of principal.
Mr Parsons said he has listened to many accounts of systemic discrimination suffered by prescription medicinal cannabis users, who risk a life-long criminal record as a consequence of taking a legally prescribed drug.
He said experts pointed out hundreds of other prescription drugs can impair driving, including benzodiazepines, opiates, anti-histamines and anti-depressants.
But users of those drugs do not face the same consequences.
"Several consultees were aware of patients who refused to take their prescribed cannabis because of the risk of licence cancellation," he said.
"Often they changed to other medications such as opiates or benzodiazepines, both of which have greater potential to impair driving as well as the potential for drug dependency but neither will trigger a prosecution just because they are present in the motorist's body.
"The legal framework that applies to medicinal cannabis patients is, accordingly, grossly discriminatory and manifestly unfair."
