If you have submitted to a blood test within three hours of driving a motor vehicle, and that blood test indicates the presence of a prescribed illicit drug, you will likely be charged under s 49(1)(i) of the Road Safety Act 1986 (RSA).
49(1) A person is guilty of an offence if he or she—
(i) 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 by a properly qualified analyst within the meaning of section 57 and the analyst has found that at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and
(ii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle…
A “prescribed illicit drug” means:
- Methylamphetamine (ice or speed);
- MDMA (ecstasy); or
- THC (cannabis, marijuana, pot etc.)
in any concentration (see s 3(1)). That is, any amount of a prescribed illicit drug detected in your blood sample will mean you have offended against s 49(1)(i) of the RSA.
Sections 55, 55B, 55BA, 55E and 56 set out 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 request for a sample of blood or to accompany to provide a sample of blood can be made where:
- you refuse a preliminary breath test or breath analysis;
- you register above the prescribed concentration of alcohol 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
- 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: Within 3 hours drive vehicle while prescribed illicit drug is present
(a) In the case of a first offence is capable of attracting a maximum fine of 12 penalty units.
(b) In the case of a second offence is capable of attracting a maximum fine of 60 penalty units.
(c) In the case of a third or any subsequent offence is capable of attracting a maximum fine of 120 penalty units.
In accordance with s 50(1E), if you are found guilty or convicted of driving within three hours while a prescribed illicit drug in any concentration was found to be present in your system after a blood analysis, the court must cancel your driver licence or learner permit, and disqualify you from driving for:
- In the case of a first offence, a minimum of six months, or
- In the case of a subsequet offence, a minimum of twelve months.
This is the mandatory minimum time your licence must be cancelled and you are disqualified from driving. A Magistrate cannot impose less, but they can choose to impose more.
The court generally does not consider prior offences that have occurred more than 10 years ago (see s 50AA). However, consideration of repeat drink or drug driving offences which may have occurred in the past, cooperation with police, and the nature of the offending may all lead a Magistrate to impose a longer than mandatory disqualification period. You should seek professional legal advice from a traffic law specialist if you have tested positive to a blood analysis after driving. They may be able to help you avoid more prolonged time off the road than is necessarily imposed by law.
It is common for police to charge you under s 49(1)(bb) for exceeding the prescribed concentration of drugs while driving as an alternative to a charge under s 49(1)(i). Only one charge will usually proceed at court. You should contact a solicitor who specialises in drug driving matters to help you proceed on only one charge. While the penalties and disqualification periods are largely similar, the circumstances of the offending may lead to a more favourable outcome when pursuing one charge over the other.
If you have been disqualified from driving for an offence against s 49(1)(i), and you are under the age of 25, you will also need to attend and complete an accredited driver education program before your licence can be reissued to you (see s 50A(1A)).
In order for the police to show you have breached s 49(1)(i), they must show that:
- you were driving or in charge of a motor vehicle within three hours prior to a sample of blood being taken from you;
- the sample was taken by a person authorised to take it;
- it was taken in accordance with the procedures and authority set out in ss 55, 55B, 55BA, 55E or 56;
- the analysis of the blood sample indicated the presence of a prescribed illicit drug in your system; and
- the presence of the illicit drug was not due solely to the consumption or use of the illicit drug after driving or being in charge of a motor vehicle.
There are also procedural requirements police must follow, such as instructing you of the need to remain at a certain place for three hours for testing, using the prescribed equipment operated by the authorised people, and recording the results in appropriate certificates. You may discuss any procedural irregularities which may have occurred with your lawyer.
If you refuse to comply with a request for a preliminary oral sample or evidentiary sample of oral fluid, as well as a request to take a blood sample or accompany to take a blood sample, you may instead be charged with one of the refuse offences under ss 49(1)(ea) or (eb). You should immediately seek help if you have been charged with refusing to provide a sample of blood as this offence can carry even more expensive penalties and longer disqualification periods.
It is a defence to a charge under s 49(1)(i) for a finding after a blood analysis that illicit drugs were present in your system within three hours of driving if your blood sample was requested or taken more than three hours after you were last driving. However, this defence will be defeated if you deliberately obstructed, interfered with, delayed, or otherwise hindered the procedure of taking a sample of blood for analysis.
It is a defence to a charge under s 49(1)(i) if you had taken a prescribed illicit drug only after you last drove. If you were driving, but took a prescribed illicit drug after driving, you would not be guilty of driving with the prescribed illicit drug present in your system. However, under s 48(1B), it is presumed that a drug found in a sample by an analyst is not due solely to the consumption of that drug after driving, so the obligation would shift to you to show that, on the balance of probabilities, you had consumed the substance only after driving. This may be difficult to prove, and you should discuss this with a solicitor.
If you can show that you took the prescribed illicit drug after driving, you may instead be charged with possession of a drug of dependence, or use of a drug of dependence under sections 73 and 75 of the Drugs, Poisons and Controlled Substances Act 1981. If you are charged with one of these offences, you may be facing serious fines and even imprisonment. You should contact an experienced criminal solicitor to help you with your charges.
If you have tested positive to one of the prescribed illicit drugs found in a blood analysis within three hours of driving or controlling a motor vehicle, you should call an experienced traffic lawyer as soon as possible. They will be able to give you advice about drug driving, and represent you at court to help you spend as little time off the road as possible.