Have you been charged with Exceeding the Prescribed Concentration of a Prescribed Illicit Drug (Blood Analysis) within 3 Hours of Driving or being in Charge of a Motor Vehicle?
There are a number of issues to consider if you have been charged with this offence.
- Did you drive or were you in control of a motor vehicle while under the influence of a prescribed illicit drug?
- Did a blood sample you provided show that a prescribed illicit drug was present?
- Was the result due to illicit drugs wholly consumed after driving?
- Are there any relevant prior matters (be aware these can include alcohol offences).
It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(i) 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 within 3 hours of driving or having been in control of a motor vehicle and the presence of the prescribed illicit drug was not due to consumption since having been driving.
A “prescribed illicit drug” includes methyl amphetamine (ice or speed), MDMA, and THC in any concentration (see s 3(1)). Unlike alcohol offences, any trace of a prescribed illicit drug found in a blood sample contravenes s 49(1)(i).
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)(i) it must be shown that:
- you were driving within three hours of a sample of blood being taken;
- the sample taken by a person authorised to take it;
- a portion of the sample was delivered to you;
- the analysis was completed by a person trained and authorised to do so;
- it indicated the presence of a prescribed illicit drug in your system; and
- the presence of the illicit drug was not due to the consumption of the illicit drug after driving or being in charge of a motor vehicle.
The police must satisfy procedural requirements such as the police advising the person of their obligation to remain in place for up to 3 three hours, using the prescribed equipment operated by the authorised people, and providing clear instructions.
If a person does not comply with a request to provide a sample of blood for drug analysis, they can be charged under sections 49(1)(ea) or (eb) for refusing the requirement. These charges carry much more severe mandatory disqualification periods.
Please read below for more information relating to this charge.
The offence
Section 49(1)(i) 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;
- The presence of the prescribed illicit drug at the time of testing was not due to the consumption of a drug after driving or being in charge of a motor vehicle.
Refusal to comply with a request for a preliminary oral sample or evidentiary sample of oral fluid may result in a person being charged with one of the refuse offences in ss 49(1)(ea) or (eb). Refusing to provide an oral sample, as those offences carry even more severe penalties and prolonged disqualification periods.
The penalty
If found guilty of an offence involving returning a positive test for the presence of a prescribe illicit drug (blood analysis) within three hours of driving the maximum penalties are –
- For a first offence, a fine of 12 penalty units.
- For a second offence a fine of 60 penalty units.
- For a third or subsequent offence a fine of 120 penalty units
Further, pursuant to section 50(1E), if a person is convicted or found guilty of an offence against section 49(1)(i) driving within three hours while a prescribed illicit drug in any concentration was present in your system (blood analysis), the court must suspend that person’s driver licence or learner permit, and disqualify them from driving for a minimum period of 6 months for a first offence and a minimum of 12 months for any subsequent offence.
You may also be required to undergo an accredited driver education program.
Where will my case be heard?
Exceed Prescribed Concentration of an Illicit Drug (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?
- If you are pleading guilty, what can you do to minimise your sentence?
What to do next?
Engage an experienced traffic lawyer to assist you to get the best outcome in your case.
Preparation is critical to the success of any matter, if you have been charged, or expect to be charged, with providing a blood sample which indicated the presence of a prescribed illicit drug within three hours of you driving, in contravention of section 49(1)(i) of the RSA and your driver’s licence is important to you, don’t go to court unrepresented.
The police and the courts take driving offences very seriously, you should 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 (This is a condensed version of s49 of the Road Safety Act including only the subsections relevant to s49(1)(i))
Section 49 Offences involving alcohol or other drugs
(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; or
(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.
(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.
(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.
(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.
