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Drive with prescribed content of drug and alcohol 49(1)(bc)

Drug Driving Offence – Drive with prescribed concentration of drug and alcohol 49(1)(bc)

It is an offence under s 49(1)(bc) to drive or be in charge of a vehicle while both the prescribed concentration of drugs and alcohol is present in a person’s blood or oral fluid.

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

(bc)     drives a motor vehicle or is in charge of a motor vehicle while both—

(i)     the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath; and

(ii)     the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in his or her blood or oral fluid.

Penalty: Driving while exceeding prescribed concentration of alcohol and drugs

The penalties for an offence against s 49(1)(bc) are set out in s 49(3AAB):

  • (a) In the case of a first offence:
    • A maximum fine of 30 penalty units.
  • (b) In the case of a second offence:
    • Where BAC (blood alcohol concentration) is less than 0.15, a maximum fine of 90 penalty units or 6 months gaol.
    • Where BAC is 0.15 or more, a maximum fine of 180 penalty units or 12 months gaol.
  • (c) In the case of a third or further subsequent offence:
    • Where BAC is less than 0.15, a maximum fine of 180 penalty units or 12 months gaol.
    • Where BAC is 0.15 or more, a maximum fine of 270 penalty units or 18 months gaol.

Licence suspension:

If you are convicted or found guilty of an offence against s 49(1)(bc) for driving while exceeding the prescribed concentration of alcohol and drugs, the court must cancel your driving licence or learner permit, and disqualify you from driving for a minimum period set out in Schedule 1AB of the Road Safety Act (RSA). The table is set out below.

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

The disqualification periods are significant, even for a first offence, and the period of disqualification doubles for subsequent offences. It is important to keep in mind that these disqualification periods are the mandatory minimum, and you may receive an even longer time off the road, particularly for a 3rd, 4th or 5th offence.

In determining whether this is your first or subsequent offence, the court will generally not consider a driving conviction which was recorded against you over 10 years ago when considering the length of licence suspension (see s 50AA). However, it is still at the discretion of the Magistrate to impose a disqualification period greater than the mandatory minimum, depending on the circumstances of your offending. You should speak with an experienced criminal defence lawyer about the possibility of excluding prior offending.

Elements:

In order to prove a charge under s 49(1)(bc), the police must show that you were driving or in control of a motor vehicle while both the prescribed concentration of alcohol was present in your blood or breath, and the prescribed concentration of drugs was present in your blood or oral fluid.   

The “prescribed concentration of alcohol” is 0.05 BAC (s 3(1)). The mandatory disqualification periods increase as the BAC becomes greater than 0.10; and increase even further for subsequent offending. The “prescribed concentration of drugs” is any amount of methylamphetamine, MDMA or cannabis detected in the blood or oral fluid of a driver. Therefore, the amount of drug in a driver’s blood or oral fluid is irrelevant, as long as any amount is found. The severity of fines and length of disqualification periods are determined by the concentration of alcohol in a driver’s blood or breath, coupled with the mere presence of one or more of the prescribed drugs.

The provision relating to driving while exceeding the prescribed concentration of drugs and alcohol is essentially a combination of sections 49(1)(b) and 49(1)(bb). The procedure for police obtaining evidence of a driver’s alcohol intoxication and drug presence for s 49(1)(bc) largely mirrors the procedures in those two provisions. You should discuss this with your criminal defence solicitor.

If you have exceeded the prescribed concentration of alcohol and the prescribed concentration of drugs, you will be charged and summonsed to appear in court. In addition, the police can immediately suspend your licence pursuant to sections 51(1)(a) or 51(1B). This will mean you cannot drive until your matter has been resolved at court.

What you might expect:

Even after your disqualification period, you will need to apply for a licence eligibility report before you can once again obtain a licence (s 31E). You should discuss the process of obtaining an eligibility report with your traffic lawyer.

VicRoads will refuse to issue you with a driver’s licence until you have completed an accredited driver education program (s 50A(1A)).

Pursuant to schedule 1B of the RSA, you must also fit an interlock device in your vehicle for 6 months for a first offence, 12 months for a second offence if your BAC was less than 0.15, or 4 years in any other case.

What you should do:

It is clear that being charged under s 49(1)(bc) for driving whilst exceeding the prescribed concentration of alcohol or prescribed concentration of drug is a serious offence. Not only are you liable to large fines, but also extended periods of time off the road. In certain circumstances, you may also be facing imprisonment.

Further penalties and punishments include fitting an interlock device and attending driver education programs, all of which come at considerable cost. If you have been charged with driving while exceeding the prescribed alcohol and drug concentrations, you should seek expert legal help as soon as possible. The charge is very serious, and you will need legal help when preparing for, and attending court.  Contact our Melbourne Criminal Defence Lawyers today.