Have you been charged with driving a motor vehicle whilst exceeding the prescribed concentration of drugs present in the body? 

Drug driving charges are technical, have serious ramifications in terms of licence loss and usually require a court appearance. If you have been charged, you should call our office.

There are a number of issues to consider if you have been charged with this offence.

  • Did you drive with drugs in your system?
  • Was the drug identified, properly classified as one of the prescribed drugs per the act?
  • Were you in charge of a motor vehicle?
  • What were the circumstances?
  • Have you been charged for similar offence in the past?
  • Have the police properly worded the charge?

It is an offence against the Road Safety Act 1986 (RSA) subsection 49(1)(bb) for a person to drive a motor vehicle or be in charge of a motor vehicle while the prescribed concentration of drugs or more than the prescribed concentration of drugs are present in their blood the oral fluids.

Please note the police informant will often lay the section 49(1)(h) charge as an alternative in relation to this particular drug driving charge. Please be aware you should never plead guilty to both if they relate to the same incident.

The relevant drugs for this section are defined at section 3(1) of the RSA, being the following “illicit drugs”:

  • Methylamphetamine
  • MDMA
  • Cannabis

The “prescribed concentration of drugs” means any level of the drug present in the blood or fluid of that person (s 3(1)). Unfortunately this often means if someone has been using cannabis for example the day before, it is likely this will still show up in relation to an oral fluid test.

The police only need to show that any one of the three listed drugs are present in the blood or oral fluid of a driver when tested. They do not need to show that the drug has impacted the driver’s ability to have control of the motor vehicle.

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

If the second sample indicates there was a prescribed concentration of drugs in your system at the time you were subjected to the sample, you will probably be charged with exceeding the prescribed concentration of drugs and you will need to attend court. Although you do not have to cooperate with police and provide a sample, it is usually in your interests to do so, as by not cooperating and not providing a sample will enliven more serious charges where longer disqualifications periods attach. 

Please note, unlike s49(1)(h), there is nothing in s57B that requires the sample to be taken within 3 hours nor to prevent blood being taken per s57(2) of the Road Safety Act and the same can be said for urine samples under s57A(2). The issue will always be that if police take samples outside of those times, they will lose the benefit of the continuity per section 48. In these circumstances it will always become more challenging for the prosecution to successfully prosecute a matter. 

Please read below for more information relating to this charge.

The offence

 Subsection 49(1)(bb) of the Road Safety Act 1986.

The prosecution must that:

  1. The defendant was driving or in charge of a motor vehicle
  2. The defendant had present in their blood or oral fluid a concentration of drugs at or above the prescribed limit.

The penalty

Driving with drugs in your system at or above the prescribed concentration have the following maximum penalties;

  1. For a first offence, a fine of 12 penalty units.
  2. For a second offence, a fine of 60 penalty units.
  3. For a third or subsequent offence, a fine of 120 penalty units.

Further, pursuant to section 50, if a person is convicted or found guilty of an offence against section 49(1)(bb) for driving with drugs in your system at or above the prescribed concentration, the court must disqualify that person’s drivers licence or learners permit for a minimum period of:

  • 3 months for a first offence.
  • 6 months for any subsequent offence.

Unlike most drink driving offences, following a plea of guilty it is likely you will have to attend court to become relicensed in relation to this charge following the conclusion of your disqualification period.

Where will my case be heard?

Ex PCA Drug driving charges will be heard will be heard in the Magistrates Court.

Questions to consider

What to do next?

Find a lawyer that understands this area of the law. Dribbin & Brown are expert traffic lawyers and handle these types of matters every day.

Preparation is always important to the success of any matter, if you have been charged with driving at or above the prescribed concentration of a drug in your body; 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 3 or 6 months or longer.

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.

Below you will find the amended legislation that only includes the subsections of section 49(1) of the Road Safety Act that are relevant to s49(1)(bb) and the alternative charge s49(1)(h).

The Legislation  

Section 49 Offences involving alcohol or other drugs

(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; or

(h) within 3 hours after driving or being in charge of a motor vehicle provides a    sample of oral fluid in accordance with section 55E and—

(i) the sample has been analysed by a properly qualified analyst within the meaning of section 57B 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; or

(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; or

(3AAA) A person who is guilty of an offence under paragraph (bb), (eb), (h) or (i) 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 12 penalty units; and

(b) in the case of a second offence, to a fine of not more than 60 penalty units; and

(c) in the case of any other subsequent offence, to a fine of not more than 120 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.

(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.

(9) If on a prosecution for an offence under paragraph (ba) of subsection (1), the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence under paragraph (bb) of that subsection, the court may find the accused guilty of an offence under paragraph (bb) and punish the accused accordingly.

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