It is an offence to drive a motor vehicle or have been in charge of a motor vehicle within three hours of driving while registering a blood alcohol concentration (BAC) consistent or over the prescribed concentration: s 49(1)(f) of the Road Safety Act 1986 (RSA).
49(1) A person is guilty of an offence if he or she—
(f) within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55 and—
(i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath; and
(ii) the concentration of alcohol indicated by the analysis to be present in his or her breath 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 breath test is 0.05 grams per 210 litres of exhaled air (that is, 0.05 BAC): see s 3(1) of the RSA. Anything over 0.05 BAC is exceeding the prescribed concentration of alcohol (PCA).
See also s 55 for the procedures for an evidentiary breath analysis, which is relevant to a charge under s 49(1)(f) because it sets out the process of breath analysis. This is not to be confused with s 53, which sets out the procedures for a preliminary breath test.
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:
(c) in any other subsequent offence:
If you are convicted or found guilty for blowing above 0.00 but under 0.05 BAC and you are not a full licence holder (i.e. a learner driver or probationary driver), you must be disqualified from driving for:
- If first offence: three months
- If subsequent offence: the periods specified in the table for subsequent offences.
If you are found guilty but not convicted for blowing 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)(f), section 50(1A) of the RSA requires a mandatory disqualification period from driving. If you exceed the PCA, the duration of your disqualification will vary depending on the concentration of alcohol detected in your breath, and whether this is your first or subsequent offence.
Schedule 1 of the RSA outlines the disqualification periods for exceeding the PCA on a first or subsequent offence.
The length of disqualification increases along with the BAC detected in your breath. It also doubles for subsequent offences. You should note that s 50AA provides that 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 for a first offence, and you should discuss this with your traffic law solicitor.
It is common for police to lay a charge under s 49(1)(b) as an alternative charge to s 49(1)(f) (see DPP v Foster; DPP v Bajram). However, only one charge will usually proceed, and police generally proceed on s 49(1)(f). This is because an evidentiary breath analysis is the strongest indicator of driving while the PCA is present in your system, while a charge under s 49(1)(b) may require evidence of bad driving, witnesses, property damage, etc.
In addition to a charge against s 49(1)(f), police may lay a careless drive charge and drive under the influence charge. Driving under the influence charges can attract more serious penalties than exceeding the PCA. It is imperative that you talk to an expert traffic lawyer to assist you with your drink driving charges.
In order to make out an offence against s 49(1)(f), the police must show that:
- you drove or were in charge of a motor vehicle;
- they requested you undergo a preliminary breath test;
- you registered a positive reading on the preliminary breath test, or failed or refused to undergo the preliminary breath test;
- they requested you provide a sample of breath or accompany them to a place where a sample of breath could be provided;
- the analysis was conducted within three hours since you last drove;
- the results of the analysis indicated you met or exceeded the PCA (that is, you blew 0.05 or above, or 0.00-0.05 if a learner or probationary driver); and
- this reading was not due solely to alcohol consumed after driving or being in charge of a motor vehicle.
The police must also satisfy other procedural requirements such as issuing you with a certificate showing the registered reading, and ensuring a prescribed breath analysing instrument was used.
Defences and what to do next:
It is a defence to a charge under s 49(1)(f) for exceeding the PCA within three hours of driving if you had not in fact been driving in the three hours before a breath analysis was conducted. However, if the police can show that you were indeed driving or in charge of a motor vehicle in the three hours before the breath analysis, you would have to show that you were not. This may be difficult, and you should talk to an experienced traffic lawyer as soon as possible.
It is also a full defence to a charge under s 49(1)(f) if your reading was positive only because you consumed alcohol after driving. That is, you drove while under the PCA, and then later consumed alcohol, and were then breath tested. You should also consult an experienced criminal solicitor about this defence.
Not only might you be facing hefty fines, but you may lose your licence for a long period of time. If you have been charged with exceeding the prescribed concentration of alcohol after a breath analysis, you should contact an expert drink driving lawyer as soon as possible.