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Within 3 hours drive vehicle over prescribed content drug and alcohol (blood) 49(1)(J)

Within 3 hours drive vehicle over prescribed content drug and alcohol (blood) 49(1)(j)

If you have given a sample of blood when asked to do so by a police officer, and the analysis indicates you exceeded the prescribed concentration of alcohol and prescribed concentration of drugs within three hours of driving, you will be liable for an offence against s 49(1)(j) of the Road Safety Act 1986 (RSA).

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

(j)     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 both—

(A)     the prescribed concentration of alcohol or more than the prescribed concentration of alcohol was present in that sample; and

(B)     a prescribed illicit drug was present in that sample in any concentration; 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; and

(iii)     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

The “prescribed concentration of alcohol” (PCA) is 0.05 blood alcohol concentration (BAC). However, a PCA of 0.00 applies to certain drivers (see s 52). These include, but are not limited to:

  • learner and probationary drivers;
  • commercial drivers (such as truck drivers, taxi drivers etc.); and
  • drivers who are required to drive with an interlock device.

A “prescribed illicit drug” means the following drugs in any concentration (s 3(1)):

  • Methylamphetamine (e.g. ice or speed),
  • MDMA (e.g. ecstasy), and
  • THC (e.g cannabis, marijuana, pot etc.)

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 if:

  • you refuse a preliminary breath test or breath analysis;
  • you 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 oral fluid test; 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 of driving give blood sample indicating above prescribed concentration of alcohol and drugs

The penalties for an offence against s 49(1)(j) 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 is less than 0.15, a maximum fine of 90 penalty units or 6 months imprisonment.
    • Where BAC is 0.15 or more, a maximum fine of 180 penalty units or 12 months imprisonment.
  • (c) A third or further subsequent offence:
    • Where BAC is less than 0.15, a maximum fine of 180 penalty units or 12 months imprisonment.
    • Where BAC is 0.15 or more, a maximum fine of 270 penalty units or 18 months imprisonment.

Licence suspension:

If you are convicted or found guilty of an offence against s 49(1)(j) for driving while exceeding the prescribed concentration of alcohol and drugs, after submitting to a blood analysis within three hours of driving, the court must cancel your driver licence or learner permit, and disqualify you from driving for a minimum period set out in Schedule 1AB of the 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. This reflects how very seriously the court approaches drivers who drink, use drugs and drive. It is important to keep in mind that these disqualification periods are the absolute minimum, and you may receive an even longer time off the road if a Magistrate believes it is necessary.

In determining whether this is your first or subsequent offence, the court will generally not consider a drink or drug driving offence which was recorded against you more than 10 years ago (see s 50AA). However, it is still open to a Magistrate to impose a disqualification period greater than the mandatory minimum. You should talk to an expert drink and drug drive defence lawyer about the possibility of excluding prior offending.

When you are charged with an offence against s 49(1)(j), you may also be charged with an offence against s 49(1)(bc). This offence is very similar, but does not expressly provide for the three-hour limitation. The three-hour limitation still exists for s 49(1)(bc), however it is pursued more in circumstances where police apprehend you in your vehicle while driving. Your case will proceed on only one charge, and the mandatory minimum fines for both offences are the same. You may of course receive more than the mandatory minimum if the circumstances of your case indicate a larger fine or longer disqualification period are warranted by any aggravating factors.

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 reissue you with a driver’s licence until you have completed an accredited driver education program (s 50A(1A)).

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

Elements:

In order to prove a charge under s 49(1)(j), the police must show that you were driving or in control of a motor vehicle within the preceding three hours, and that the prescribed concentration of alcohol and the prescribed concentration of drugs were present in your blood. The procedure for police obtaining evidence of a driver’s alcohol intoxication and drug presence for s 49(1)(j) are set out in sections 55, 55B, 55BA, 55E and 56.

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

What you should do:

The penalties and disqualification periods for a combined drink and drug driving charge under s 49(1)(j) are very serious. You could be facing a large fine, long period off the road, and even gaol time. Further, you may need to complete driver education programs, apply to the court when you are eligible to have your licence reinstated, and fit an interlock device in your motor vehicle before your can once again drive. All of these actions require considerable time and expense.

If you have been charged with exceeding the prescribed concentration of alcohol and drugs within three hours of driving, as evidenced by a blood analysis, you should contact an experienced drink and drug drive lawyer as soon as possible. The courts take drink and drug driving very seriously, and it is crucial to your court case that you receive the best representation possible. Call a professional traffic lawyer to seek legal advice immediately.

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