drink driving

Within 3 hours drive vehicle over prescribed content alcohol (Blood) 49(1)(g)

The offence of driving while the prescribed concentration of alcohol (PCA) has been detected in a sample of blood is found in s 49(1)(g) of the Road Safety Act 1986 (RSA).

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

(g)     has had a sample of blood taken from him or her in accordance with section 55, 55B, 55BA, 55E or 56 within 3 hours after driving or being in charge of a motor vehicle and— 

(i)     the sample has been analysed within 12 months after it was taken by a properly qualified analyst within the meaning of section 57 and the analyst has found that at the time of analysis the prescribed concentration of alcohol or more than the prescribed concentration of alcohol was present in that sample; and

(ii)     the concentration of alcohol found by the analyst to be present in that sample was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle…

The “prescribed concentration of alcohol” for a blood analysis is 0.05 grams per millilitre of blood (that is, 0.05 blood alcohol concentration, or BAC): see s 3(1) of the RSA. Anything over 0.05 BAC is exceeding the PCA.

See ss 55, 55B, 55BA, 55E and 56 for the circumstances in which a police officer can request that you provide a sample of blood within three hours of you driving a motor vehicle.

In general (but not limited to the following) a blood sample may be required if you refuse a preliminary breath test or breath analysis, register above the PCA on a preliminary breath test, a breath analysis instrument is not available or operational, you request to have your blood taken, you have been subjected to an assessment for drug impairment, you are otherwise unable to provide a breath analysis, or if you have been admitted to a hospital or place of treatment due to an accident involving a motor vehicle and you are over 15 years of age.  

Penalty: Drive while over prescribed concentration of alcohol

The penalty for exceeding the PCA within three  hours of driving is found in s 49(2A):

  • (a) In the case of a first offence:
    • A maximum fine of 20 penalty units.
  • (b) In the case of 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) in 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:

If you are convicted or found guilty for registering a BAC after a blood sample of above 0.00 but under 0.05 and you are not a full licence holder (i.e. a learner driver or probationary driver), you must be disqualified from driving for:

  • If this is your first offence: three months
  • If this is a subsequent offence: the periods specified in the table for subsequent offences (see below).

If you are found guilty but not convicted for registering a BAC after a blood sample above 0.05 but under 0.07 and you are an interstate driver above 26 years old and hold a full driver licence, you may be disqualified from driving for a maximum of six months for a first offence.

For all other situations involving an offence against s 49(1)(g), section 50(1A) of the RSA requires a mandatory disqualification period from driving. If you exceed the PCA upon giving a blood sample, and are convicted or found guilty, the duration of your disqualification will vary depending on the concentration of alcohol detected in your blood, and whether this is your first or subsequent offence.

The following table sets out the disqualification periods for exceeding the PCA on a first or subsequent offence (see Sch 1 of the RSA).

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

The length of disqualification increases along with the  BAC registered as a result of your blood analysis. It also doubles for subsequent offences. Note that s 50AA provides that prior offences which are more than 10 years old are not considered prior offences for a current charge. However, a Magistrate may still disqualify you from driving for longer than the mandatory minimum, even for a first offence, and you should discuss this with your criminal defence lawyer.

It is also common for police to lay charges under ss 49(1)(a) or (b) as alternative charges to s 49(1)(g) (see Mills v Meeking). However, usually only one charge will proceed, and police generally proceed on s 49(1)(g) if you have satisfactorily provided a sample of blood. This is because a blood sample is the strongest indicator of driving while the PCA is present in your system, while a charge under s 49(1)(a) or (b) may require additional evidence of bad driving, witnesses, property damage etc.

In addition to a charge against s 49(1)(g), police may lay a careless drive charge. It is critical to the success of your case that you talk to an expert traffic lawyer to assist you with your drink driving charges.      

Elements:

In order to prove a charge of driving while over the prescribed content of alcohol was found in your blood, the police must satisfy certain elements which are common to s 49(1)(g), as well as certain elements which are specific to the various provisions to which s 49(1)(g) relates – ss 55, 55B, 55BA, 55E or 56.

These provisions set out the circumstances in which a sample of blood may be requested from you by police. If a police officer was authorised to request you provide a sample of blood for any of the reasons in those provisions, the charge will be made out if:

    • you drove or were in charge of a motor vehicle;
    • you agreed to give blood in accordance with one of the above provisions;

 

  • Note: s 56 requires that you must allow a registered medical practitioner or approved health professional to take a sample of blood from you if you are taken to a place for treatment after an accident and you are over 15 years old.

 

  • a blood sample was taken from you in accordance with proper procedure and by a person authorised to take the sample;
  • the sample was taken from you within three hours since you last drove;
  • the sample was analysed within 12 months of being taken;
  • the sample indicated you met or exceeded the prescribed concentration of alcohol; and
  • the positive indication was not solely as a result of you consuming alcohol after driving or being in charge of a motor vehicle.  

Further to this, there are certain procedural requirements which must be followed, such as police informing you of your obligation to remain for up to three hours in order to obtain a sample of blood (see Uren v Neale), and delivering a blood sample and certificate to you after it is taken.

If you do not comply with a request to provide a sample of blood, you will likely be charged under one of the refusal provisions in ss 49(1)(d), (e) or (ea). These charges often carry much more severe mandatory disqualification periods.  

Defences and what to do next:

It is a defence to a charge under s 49(1)(g) for driving while the prescribed concentration of alcohol (PCA) has been detected in a sample of blood if you had not been driving in the three hours before a blood analysis was taken. However, if the police can show that you were indeed driving or in charge of a motor vehicle in the preceding three hours, the onus would be on you to show that you were not. This may be difficult to prove, and you should talk to a professional traffic lawyer immediately.

A full defence to a charge under s 49(1)(g) also exists if your analysis was positive only because you consumed alcohol after driving. That is, you drove while under the PCA, and then later consumed alcohol, and then gave a sample of blood. You should also consult an experienced criminal solicitor about this defence.

You should call a drink driving lawyer if you have been charged with driving while over the prescribed concentration of alcohol, having provided a positive sample of blood. The penalties and disqualification periods can be quite serious, particularly if this is not your first offence, and your sample indicated a high level BAC. Contact a criminal defence solicitor as soon as possible in order to best prepare yourself for your upcoming court case.  

 

 

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