Have you been charged with Exceeding the Prescribed Concentration of Drugs and Alcohol (Blood Analysis) within 3 Hours of Driving or being in Charge of a Motor Vehicle?
Section 49(1)(j) will often be paired with s49(1)(bc) as an alternative charge. On a plea of guilty the prosecution will often proceed with the s49(1)(j) charge and withdraw the s49(1)(bc) charge as an alternative as 49(1)(j) is easier for the prosecution to prove.
It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(j) to furnish a sample of blood, taken in accordance with section 55, 55B, 55BA, 55E or 56, and analysis detects the presence of a prescribed illicit drug and the prescribe concentration of alcohol (PCA) within 3 hours of driving or having been in control of a motor vehicle and the presence of the prescribed illicit drug and a PCA at or above the limit was not due to consumption since having been driving.
A “prescribed illicit drug” includes methylamphetamine (ice or speed), MDMA, and THC in any concentration (see s 3(1)). Unlike alcohol, any trace of a prescribed illicit drug found in an blood sample contravenes the law.
The definition of “prescribed concentration of alcohol” is found in s 3(1) RSA, it is:
- a concentration of alcohol present in the blood of that person of 0·05 grams per 100 millilitres of blood unless zero is required as per section 52 of the RSA.
Any more than the above limit is considered exceeding the PCA.
Under section 55 of the RSA the police can request a person submit to the collection of a blood sample for analysis if it appears that the person is unable to furnish the required sample of breath on medical grounds or due to a physical disability or if the instrument used to analyse breath is incapable of measuring the concentration of alcohol present for any reason.
The police can require that a person accompany them to a place where the sample can be taken and remain there until it is taken or until 3 hours has lapsed since they were a driver or occupant in a motor vehicle. A person who does as requested in these circumstances will not be charged with any refusal offence.
Section 55B states that if a person undergoes an assessment for drug impairment and in the opinion of the officer carrying out the assessment it indicates that person is impaired by a drug, they may require the person to furnish a sample of blood for analysis.
Section 55BA relates to incidents when a person has been the driver or passenger in a motor vehicle involved in an accident that resulted in death or serious injury. The section applies if the police reasonably believe a person has been involved in such an accident, the police can direct that that person has a sample of blood taken by an approved person for analysis for drugs or alcohol. The person may be required to accompany the police to a facility where the procedure can occur, or it may occur during hospital treatment.
Pursuant to section 56 of the RSA blood samples are to be taken in certain circumstances. If a person of or over the age of 15 years enters or is brought to a place for examination or treatment in consequence of an accident (whether within Victoria or not) involving a motor vehicle, the person must allow a doctor or approved health professional to take from that person at that place a sample of that person’s blood for analysis. A person must not hinder this process. And a person who is unconscious or unable to communicate is assumed to allow the taking of the sample.
In order to make out an offence against s 49(1)(j) it must be shown that:
- a person drove or were in charge of a motor vehicle;
- that person was lawfully requested to provide a sample of blood for analysis in accordance with one of the sections of the RSA mentioned in the above paragraphs;
- the person consented to the collection of the sample for analysis;
- the sample collected within three hours since the person last drove;
- the blood sample was taken in accordance with proper procedure and by a person authorised to take the sample; and
- it indicated the presence of a prescribed illicit drug; and
- the results of the analysis indicated the person tested met or exceeded the PCA (0.05 or above, or 0.00-0.05 if a learner or probationary driver); and
- the reading was not due solely to drugs and alcohol consumed after driving or being in charge of a motor vehicle.
The police must satisfy other procedural requirements such as the police advising the person of their obligation to remain. in place for up to 3 three hours, issuing the person with a certificate showing the registered reading, and ensuring the person collecting the sample was properly qualified.
If a person does not comply with a request to provide a sample of blood, they can be charged under sections 49(1)(d), (e), (ea) or (eb) for refusing the requirement. These charges often carry much more severe mandatory disqualification periods.
Please read below for more information relating to this charge.
The offence
Section 49(1)(j) 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 blood sample for analysis; and
- The defendant returned a positive result for the presence of a prescribed illicit drug in the sample; and
- The sample detected alcohol at or above the PCA; and
- The presence of the prescribed illicit drug and alcohol over the PCA at the time of testing was not due to the consumption of drugs or alcohol after driving or being in charge of a motor vehicle.
The penalty
If found guilty of an Offence Involving Alcohol or Other Drugs: Exceed Prescribed Concentration of an Illicit Drug and exceed PCA (Blood Analysis) within 3 hours of driving the maximum penalties are –
The penalties for an offence against s 49(1)(j) are set out in s 49(3AAB):
- For a first offence, a fine of 30 penalty units.
- For a second offence:
- Where BAC is less than 0.15 a fine of 90 penalty units or a term of imprisonment of 6 months.
- Where BAC is 0.15 or more a fine of 180 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 180 penalty units and imprisonment for a term of 12 months.
- Where BAC is 0.15 or more a fine of 270 penalty units and imprisonment for a term of 18 months.
Further, pursuant to section 50(1AD), if a person is convicted or found guilty of an offence against section 49(1)(j), the court must suspend that person’s driver licence or learner permit, and disqualify them from driving for a minimum period as set in Schedule 1AB of the RSA. Schedule 1AB outlines the disqualification periods for exceeding the PCA within 3 hours of driving on a first or subsequent offence. The periods are between 12 – 60 months, but these are just the minimums.
Where will my case be heard?
Driving Offences Involving Alcohol or other Drugs: Exceed Prescribed Concentration of an Illicit Drug and exceed PCA (Blood Analysis) within 3 hours of driving cases will be heard in the Magistrates Court.
Questions to consider
Do you have a defence?
Had it been longer than three hours since you last drove a motor vehicle?
Had you consumed any drugs in the time between driving and being tested?
Had you consumed any alcohol in the time between driving and being tested?
If you are pleading guilty, what can you do to minimise your sentence?
What to do next?
If you have been charged with an offence under 49(1)(j) a police officer may suspend your licence immediately, as per section 85 of the RSA. This would mean you cannot drive until your matter has been determined at court, but this suspension can be appealed while awaiting the court hearing for the alleged offence.
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.
The Legislation ( S49 includes all drink & drug driving charges, below is the relevant parts of the section to this charge).
Section 49 Offences involving alcohol or other drugs
(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.
(3AAB) A person who is guilty of an offence under paragraph (bc) or (j) 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 30 penalty units; and
(b) in the case of a second offence—
(i) to a fine of not more than 90 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 180 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 180 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 270 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.
(3AA) A person who is guilty of a supervising driver offence is liable to a fine of not more than 5 penalty units.
(5) It is a defence to a charge under paragraph (g), (h), (i) or (j) of subsection (1) for the person charged to prove that the result of the analysis was not a correct result.
(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.
(6A) In any proceedings for an offence under paragraph (h), (i) or (j) of subsection (1) evidence as to the effect of the consumption or use of a drug on the accused is admissible for the purpose of rebutting the presumption created by section 48(1B) 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.
