PCA Driving Offences (Prescribed Content of Alcohol)
PCA stands for “Prescribed Content of Alcohol,” a term commonly associated with various drink-driving offences in Victoria. It is illegal in Australia to drive or be in control of a motor vehicle with a blood alcohol content (BAC) exceeding the prescribed content of alcohol allowed by your licence type. For learner drivers, the limit is zero BAC (.00), while for fully licensed drivers, it is .05 BAC or higher. When referring to PCA, the legislation outlines the maximum permissible BAC levels for drivers. Thus, “PCA drink driving” refers to driving while exceeding the allowable prescribed content of alcohol for your licence category.
The definition of “prescribed concentration of alcohol” is found in s 3(1) RSA, it is defined there as:
- A concentration of alcohol present in the blood of a person of 0·05 grams per 100 millilitres of blood; or
- A concentration of alcohol present in the breath of a person of 0·05 grams per 210 litres of exhaled air.
- In relation to a driver to whom section 52 applies, (0.00) BAC
Any more than the above limits is considered exceeding the PCA or ExPCA (Exceeding the Prescribed Content) as it is commonly known.
In Victoria, two common PCA charges are often laid simultaneously, but they are considered alternative charges. This means a defendant should only ever plead guilty to one of them. These charges are:
- s49(1)(b) of the Road Safety Act: Exceed the Prescribed Concentration of Alcohol (PCA)
- s49(1)(f) of the Road Safety Act: Exceeding the PCA within 3 hours of driving or being in control of a motor vehicle
Police will usually insist that the s49(1)(f) charge remain on a plea of guilty as there are less available defences regarding this charge compared to the first charge. See below to understand the difference between each charge. Where the reading is taken outside of 3 hours, then police can only proceed with the s49(1)(b) offence.
s49(1)(f) Exceeding the Prescribed Concentration of Alcohol (Breath Analysis) within 3 Hours of Driving or being in Charge of a Motor Vehicle
As indicated above, section 49(1)(f), driving whilst exceeding the PCA within 3 hours of driving is a charge that is usually listed with section 49(1)(b). If the matter is proceeding as a plea of guilty, you should ever accept one of these charges. It is usually the case that the prosecution will proceed with the s49(1)(f) charge and withdraw the s49(1)(b) charge.
Like any drink driving matter there are a number of issues to consider if you have been charged with this offence.
- Primarily, there must be a consideration of whether the prosecution can make out their case?
- Did you drive a motor vehicle whilst being over the prescribed content of alcohol (being .05 or more in relation to open drivers)?
- Was the result due solely to alcohol consumed after driving, this might be a defence?
- Do you have prior history for drink driving?
It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(f) to furnish a sample breath that detects the prescribed concentration of alcohol (PCA) or more than the prescribed concentration of alcohol within 3 hours of driving or having been in control of a motor vehicle if the alcohol present was not due to alcohol imbibed after driving or being in charge of a motor vehicle.
In order to make out an offence against s 49(1)(f) it must be shown that:
- You drove or were in charge of a motor vehicle;
- You were lawfully requested you undergo a preliminary breath test;
- You registered a positive reading on the preliminary breath test,
- You were requested to provide a sample of breath or accompany the police to a place where an evidentiary sample of breath could be provided;
- The analysis was conducted within three hours since you last drove;
- You consumed no alcohol within 15 minutes of being asked to take the test
- The results of the analysis indicated you met or exceeded the PCA (0.05 or above, or above 0.00 if a learner or probationary driver); and
- The 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.
Please read below for more information relating to this charge.
What is in Charge of a Motor Vehicle Mean?
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Under the Road Safety Act 1986 – Section 3AA, a person is considered “in charge” of a motor vehicle if they are attempting or reasonably believed to intend to start or drive it, supervising an automated vehicle in automated mode, or acting as a driving instructor or supervising driver for someone driving or in charge of the vehicle. However, the liability for offences remains with the person being taught or supervised while driving.
The elements of the charge
Section 49(1)(f) of the Road Safety Act 1986.
The prosecution must that:
- The defendant was driving or in charge of a motor vehicle within the 3 hours prior to providing a breath sample for analysis; and
- The defendant had a BAC concentration at or above the prescribed level;
- The concentration at the time of testing was not due solely to t the consumption of alcohol after driving or being in charge of a motor vehicle.
The definition of “prescribed concentration of alcohol” is found in s 3(1) RSA.
s49(1)(b) Exceed the Prescribed Concentration of Alcohol (PCA Charge)
As indicated above, section 49(1)(b) of the Road Safety Act 1986 (RSA) is often paired with s49(1)(f) of the RSA. It is important to understand that this doesn’t mean that you have to accept both charges, as one of the charges will always be considered an alternative.
There are a number of issues to consider if you have been charged with this offence.
- How many charges are listed?
- Did you drive or were you in control of a motor vehicle with over the permissible prescribed amount of alcohol in your system when police intercepted you?
- What was your blood alcohol concentration (BAC), as this will influence the severity of the penalty.
- What were the circumstances?
- Did you ask for a blood test which was refused?
- Do you have similar driving history in the past?
It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(b) to drive a motor vehicle or be in charge of a motor vehicle while the prescribed concentration of alcohol (PCA) or more than the prescribed concentration of alcohol is present in their blood or breath analysis.
There are procedural requirements that must be satisfied by the police when conducting a preliminary breath test, evidentiary breath test, or blood sample. These include:
- Using an approved breath analysing instrument
- Confirming 15 minutes has passed since your last drink
- Providing you with a signed certificate indicating your BAC
- Guaranteeing a registered medical practitioner takes your blood if requested
Any failure in the above procedural requirements can result in evidence of your BAC being inadmissible, making it difficult for the police to show you are guilty.
Please read below for more information relating to this charge or click on this PDF document that has the relevant parts of the legislation in relation to this ExPCA charge highlighted.
The Elements of the Charge
Section 49(1)(b) of the Road Safety Act 1986.
The prosecution must prove that:
- The defendant was driving or in charge of a motor vehicle
- The defendant had a BAC (Blood alcohol concentration) at or above the prescribed level.
The Maximum Penalty in relation to PCA offences, section 49(1)(b) and section 49(1)(f).
If found guilty of the above offences, the maximum penalties are –
- For a first offence,
- A fine of 20 penalty units
- For a second offence:
- Where BAC is less than 0.15 a fine of 60 penalty units or a term of imprisonment of 6 months.
- Where BAC is 0.15 or more a fine of 120 penalty units and imprisonment for a term of 12 months.
- For a third or subsequent offence:
- Where BAC is less than 0.15: a fine of 120 penalty units and imprisonment for a term of 12 months.
- Where BAC is 0.15 or more a fine of 180 penalty units and imprisonment for a term of 18 months.
Mandatory Licence Loss re PCA offences:
Further, pursuant to section 50(1A), if a person is convicted or found guilty of an offence against section 49(1)(f) or section 49(1)(b) the court must cancel that person’s driver licence or learner permit, and disqualify them from driving for a minimum period as set in Schedule 1 of the RSA. Schedule 1 outlines the disqualification periods for exceeding the PCA within 3 hours of driving on a first or subsequent offence. The periods are between 3 – 48 months but a magistrate can exceed this amount of time and we have seen cases where this has occurred, but only in relation to serious examples of this offence.
If found guilty of this offence you may be required to undergo a behavioural change program. Participation in these programs in determined by VicRoads.
Where will my PCA case be heard?
These types of drink driving charges will be heard will be heard in the Magistrates Court.
What to do next?
Contact Dribbin & Brown Criminal Lawyers, specialists in drink driving matters. Dribbin & Brown Lawyers regularly represent clients charged with drink driving offences including ExPCA charges. We have multiple offices around Melbourne and Geelong. Our Melbourne drink driving lawyers represent clients charged with drink driving offences most days of the week. Our offices are all in close proximity to the local Magistrates’ Court meaning our lawyers are familiar with the magistrates, prosecutors and court staff, so we know how to get the job done.
Preparation is always important to ensure that your case is put in the absolute best light. The best way to ensure you are adequately prepared is to engage our experienced drink driving lawyers.
If you have been charged with exceeding the prescribed concentration of alcohol in contravention of s 49(1)(b) or s49(1)(f) of the RSA and if your driver’s licence is important to you, don’t go to court unrepresented. Consider how much it will cost you to be disqualified from driving for months or years. If you have previously committed an offence of driving under the influence of drugs or alcohol the penalties will be more severe, you may receive a term of imprisonment along with fines and license disqualification.
For the purposes of disqualification, section 50AA of the RSA deems driving offences for which you were convicted over 10 years ago not to be a prior offence. However, it is still at a Magistrates’ discretion to disqualify you from driving for longer than the mandatory minimum.
The police and the courts take driving offences very seriously to avoid severe penalties you need to be represented; Dribbin & Brown Lawyers are experienced in handling these types of matters. We regularly appear in court to represent people charged with driving offences. If you have been charged, call our office today.
The Legislation Re s49(1)(b) & s49(1)(f)
Section 49 Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she—
- (b) drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath; or
- (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; or
(2A) A person who is guilty of an offence under paragraph (b), (f) or (g) of subsection (1), other than a supervising driver offence, is liable—
- (a) in the case of a first offence, to a fine of not more than 20 penalty units; and
- (b) in the case of a second offence—
- (i) to a fine of not more than 60 penalty units or to imprisonment for a term of not more than 6 months if the concentration of alcohol—
(A) in the person’s blood was less than 0·15 grams per 100 millilitres of blood; or
(B) in the person’s breath was less than 0·15 grams per 210 litres of exhaled air—
as the case requires; or
- (ii) to a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months if the concentration of alcohol—
(A) in the person’s blood was 0·15 grams or more per 100 millilitres of blood; or
(B) in the person’s breath was 0·15 grams or more per 210 litres of exhaled air—
as the case requires; and
- (c) in the case of any other subsequent offence—
- (i) to a fine of not more than 120 penalty units or imprisonment for a term of not more than 12 months if the concentration of alcohol—
(A) in the person’s blood was less than 0·15 grams per 100 millilitres of blood; or
(B) in the person’s breath was less than 0·15 grams per 210 litres of exhaled air—
as the case requires; or
-
- (ii) to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months if the concentration of alcohol—
(A) in the person’s blood was 0·15 grams or more per 100 millilitres of blood; or
(B) in the person’s breath was 0·15 grams or more per 210 litres of exhaled air—
as the case requires.
(4) It is a defence to a charge under paragraph (f) of subsection (1) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated.
(6) In any proceedings for an offence under paragraph (f), (g) or (j) of subsection (1) evidence as to the effect of the consumption of alcohol on the accused is admissible for the purpose of rebutting the presumption created by section 48(1A) but is otherwise inadmissible.
(7) On convicting a person, or finding a person guilty, of an offence under subsection (1) the court must cause to be entered in the records of the court—
- (a) in the case of an offence under paragraph (b) of subsection (1), the level of concentration of alcohol found to be present in that person’s blood or breath; and
- (b) in the case of an offence under paragraph (f) of subsection (1), the level of concentration of alcohol found to be recorded or shown by the breath analysing instrument; and
- (c) in the case of an offence under paragraph (g) or (j) of subsection (1), the level of concentration of alcohol found to be present in the sample of blood.
