drink driving

Exceed Prescribed Content whilst driving 49(1)(b)

The offence of exceeding the prescribed concentration of alcohol (PCA) while driving is found in s 49(1)(b) of the Road Safety Act 1986 (RSA).

49(1)     A person is guilty of an offence if he or she—

(b)     drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath.

Penalty: Exceeding prescribed content

The penalty for exceeding the PCA is found in s 49(2A):

  • (a) For a first offence:
    • A maximum fine of 20 penalty units.
  • (b) For a second offence:
    • Where BAC is less than 0.15: a maximum fine of 60 penalty units or 6 months gaol.
    • Where BAC is 0.15 or more: a maximum fine of 120 penalty units or 12 months gaol.  
  • (c) Any other subsequent offence:
    • Where BAC is less than 0.15: a maximum fine of 120 penalty units or 12 months gaol.
    • Where BAC is 0.15 or more: a maximum fine of 180 penalty units or 18 months gaol.  

Licence Suspension:

For an offence against s 49(1)(b), section 50(1A) of the RSA requires a mandatory disqualification from driving. If you exceed the PCA, the duration of your disqualification will vary depending on the concentration of alcohol detected in your blood or breath, and whether this is your first or subsequent offence.

The following table, found in Schedule 1 of the RSA, outlines the disqualification periods for exceeding the PCA on a first or subsequent offence.

BAC
First offence
Subsequent offence
Less than .07
6 months
12 months
·07 or more but less than ·08
6 months
14 months
·08 or more but less than ·09
6 months
16 months
·09 or more but less than ·10
6 months
18 months
·10 or more but less than ·11
10 months
20 months
·11 or more but less than ·12
11 months
22 months
·12 or more but less than ·13
12 months
24 months
·13 or more but less than ·14
13 months
26 months
·14 or more but less than ·15
14 months
28 months
·15 or more but less than ·16
15 months
30 months
·16 or more but less than ·17
16 months
32 months
·17 or more but less than ·18
17 months
34 months
·18 or more but less than ·19
18 months
36 months
·19 or more but less than ·20
19 months
38 months
·20 or more but less than ·21
20 months
40 months
·21 or more but less than ·22
21 months
42 months
·22 or more but less than ·23
22 months
44 months
·23 or more but less than ·24
23 months
46 months
·24 or more
24 months
48 months

As shown, the period of disqualification increases as the BAC increases, and the disqualification period doubles for subsequent offences. A subsequent offence is any drink or drug driving offence in contravention of s 49 (see also s 50AA).

 

It is also common for police to lay a charge under s 49(1)(f) as an alternative charge to s 49(1)(b) (see, for example, DPP v Foster; DPP v Bajram). However, only one charge will usually proceed, and police generally withdraw this charge and proceed on s 49(1)(f). In addition to this, police may lay a careless driving charge and driving under the influence charge. Driving under the influence charges can attract more serious penalties than exceeding PCA. It is important that you talk to an expert traffic lawyer to assist you with your drink driving charges.      

Elements:

To make out the charge of exceeding the prescribed concentration of alcohol under s 49(1)(b), police must show that you were driving or in charge of a motor vehicle while the prescribed content of alcohol or more than the PCA was present in your blood or breath.

The meaning of “prescribed concentration of alcohol” is found in s 3(1) RSA and is generally either:

  • a concentration of alcohol present in the blood of a person of 0·05 grams per 100 millilitres of blood; or
  • a concentration of alcohol present in the breath of a person of 0·05 grams per 210 litres of exhaled air.

Any more than the above limits would be exceeding the PCA.

Defences and what you should do:

Certain procedural requirements must be satisfied by the police when conducting a preliminary breath test, evidentiary breath test, or blood sample. These include:

  • using an approved breath analysing instrument
  • ensuring 15 minutes has passed since your last drink
  • giving you a signed certificate indicating your BAC
  • ensuring a registered medical practitioner takes your blood
  • having a properly qualified or approved analyst analyse your blood within 12 months of the sample being taken  

Any lapses in the above procedural requirements may result in evidence of your BAC being inadmissible, making it difficult for the police to show you were impaired by alcohol while driving. Other defences specific to s 49(1)(b) also exist which are less limited than those available under ss 49(1)(f) or (g) (see Mills v Meeking).

If you have been charged with exceeding the prescribed concentration of alcohol in contravention of s 49(1)(b) of the RSA, you should seek professional legal help as soon as possible. The sooner you speak with a criminal defence solicitor, the better your chances of a favourable outcome at court.