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Drive with prescribed content of drug present 49(bb)

Drug Driving Offence – Drive with prescribed content of drug present 49(bb)

It is an offence under s 49(1)(bb) of the Road Safety Act 1986 (RSA) to drive while the prescribed concentration of drugs is present in a person’s blood or oral fluid.

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

(bb)     drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in his or her blood or oral fluid.

Penalty: Drive with the prescribed concentration of drugs

The penalties for contravening s 49(1)(bb) of the RSA are found in s 49(3AAA):

  • (a) A first offence is capable of attracting a maximum fine of 12 penalty units.
  • (b) A second offence is capable of attracting a maximum fine of 60 penalty units.
  • (c) A third or any subsequent offence is capable of attracting a maximum fine of 120 penalty units.  

Licence suspension:

If you are found guilty or convicted of driving while the prescribed concentration of drugs or more than the prescribed concentration of drugs is present, the court must cancel your driver licence or learner permit, and disqualify you from driving for:

  • A minimum of 3 months for a first offence, or
  • A minimum of 6 months for a subsequent offence.

This is the minimum requirement imposed by s 50(1E). A Magistrate cannot impose less, but they can certainly impose more. This is particularly relevant when a court considers whether you have offended against the section for the first or subsequent time. While the court does not consider prior offences that have occurred more than 10 years ago (see s 50AA), a Magistrate may still impose a disqualification period greater than the 3 month minimum, even for a first offence.

Penalties are dependent on the circumstances of your case. You should seek legal assistance from a traffic law specialist. They may be able to help you avoid spending more time off the road than is required by law.

If you have been charged with driving while the prescribed concentration of drugs is present in your blood or oral fluid, and have not been disqualified by a court from driving, you will lose 10 demerit points (row 72 and column 3 of schedule 3 of the Road Safety (Drivers) Regulations 2009). However, because amendments to the RSA now mandate disqualification from driving even for a first offence, these regulations may no longer be applicable.

Elements:

The “drugs” to which the section refers are listed in s 3(1), being the illicit drugs:

  • Methylamphetamine
  • MDMA
  • Cannabis

The “prescribed concentration of drugs” means any concentration of the drug present in the blood or fluid of that person (s 3(1)).   

As is shown above, the police only need to show that any of the three listed drugs are present in the blood or oral fluid of a driver. They do not however need to show that the drug has impacted the driver’s ability to have proper control of their vehicle. This is different to the s 49(1)(ba) charge of driving while impaired by a drug, and is often charged as an alternative, as it does not need to demonstrate any impairment.

If you have tested positive to a preliminary roadside oral sample, you will often be asked to provide a further oral sample, blood sample, or urine sample for evidentiary purposes. There are procedural rules which must be followed when taking these samples, and you should consult with an expert criminal solicitor about the circumstances surrounding your testing if you believe procedure may not have been followed when obtaining the sample.

If the second sample of oral fluid, or in some cases blood or urine, indicates there was a prescribed concentration of drugs in your system at the time you were subjected to the sample, and the sample was taken within 3 hours of driving, you will likely be charged with exceeding the prescribed concentration of drugs and you will need to attend court.    

Seek legal advice:

If you have been charged with an offence against s 49(1)(bb) for driving while exceeding the prescribed concentration of drugs present in your blood or oral fluid, you should seek legal advice as soon as possible. You could be facing large fines and an extended period off the road. You should talk to a traffic law specialist to better prepare yourself for court, and ensure you are back on the road as soon as possible.  

 

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