s49(1)(ca) Refusing to Undergo Assessment for Drug Impairment? 

Have you been charged with refusing to undergo assessment for drug impairment? 

There a number of technicalities in relation to this charge, and it is important that if you have been charged with refusing to undergo a drug impairment assessment that you seek the guidance of an experienced traffic offence lawyer.

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

• Were you driving in charge of a motor vehicle and stopped by police?
• Did you refuse to undergo an assessment for drug impairment?
• Did you undertake the procedure satisfactorily or do your level best?
• Have you been charged for similar offence in the past?

It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(ca) to refuse to undergo an assessment for drug impairment in accordance with section 55A of the RSA. If the police officer suspects that person’s behaviour or appearance indicates that he or she may be impaired for a reason other than alcohol alone the police have the authority to request that person undergo as assessment for drug impairment.

Section 55A provides that a police officer may, at any time deem necessary, require:

• any person they find in charge of or driving a motor vehicle; or
• the driver of a vehicle stopped at a preliminary testing station; or
• any person they believe was in charge of or driving a motor vehicle within 3 hours of when it was involved in an accident, or
• any person they believe was an occupant in a motor vehicle within 3 hours when it was involved in an accident –

to undergo such a test.

A refusal can either be verbal or by conduct. Refusing an assessment of drug impairment includes:

1. verbally refusing the request of police;
2. refusing to accompany police to a place to undergo an assessment; or
3. refuse to undergo the assessment by being physically obstructive.

The police must adhere to certain procedural requirements when requesting and conducting an assessment of drug impairment. These include, but are not limited to:

• Being an authorised police officer for the purposes of carrying out an assessment of drug impairment; and
• Carrying out the assessment in accordance with legislated procedure; and
• Video-recording the assessment (except in special circumstances); and
• Providing a copy of the video to the accused.

If any of these requirements have not been followed, an assessment of drug impairment may be rendered inadmissible.

Under s 49(1A), the police officer requesting the assessment of drug impairment need not be an authorised officer, and the request need not be made at the place the assessment is to take place. It is simply refusal of the request which constitutes the offence.

As outlined below the periods of licence disqualification are double the mandatory minimum of that where an offender copmlies with the test but is considered impaired.

Please read below for more information relating to this charge.

The offence

 Section 49(1)(ca) of the Road Safety Act 1986.

The prosecution must that:

1. The defendant was driving or in charge of a motor vehicle; and
2. The defendant refused to undergo assessment for drug impairment in accordance with section 55Aof the Road Safety Act 1986.

The penalty

If found guilty of an Offence Involving Alcohol or Other Drugs: Refusing to Undergo an Assessment for Drug Impairment the maximum penalties are:

1. For a first offence, a fine of 12 penalty units.
2. For a second offence, a fine of 120 penalty units or imprisonment for a term of 12 months.
3. For a third or subsequent offence, a fine of 180 penalty units or imprisonment for a term of 18 months.

Further, pursuant to section 50(1D), if a person is convicted or found guilty of an offence against section 49(1)(ca) for refusing to undergo an assessment for drug impairment when requested to do so, the court must suspend that person’s driver licence or learner permit, and disqualify them from driving for a minimum period of:

• 2 years for a first offence.
• 4 years for any subsequent offence.

Where will my case be heard?

Refusing to Undergo Assessment for Drug Impairment cases will be heard will be heard in the Magistrates Court.

Questions to consider

Do you have a defence?

How to avoid a record through the spent conviction legislation by achieving a non-conviction.

If you are pleading guilty, what can you do to minimise your sentence?

What to do next?

Seek advice from experienced traffic offence lawyers.

Preparation is critical to the success of any matter, if you have been charged with refusal to undergo an assessment for drug impairment when driving or in control of a motor vehicle and if your driver’s licence is important to you, don’t go to court unrepresented. Losing your driver’s licence or going to gaol will be a costly exercise.

If you have been charged with refusing to undergo an assessment of drug impairment, a police officer may suspend your licence immediately, as per section 85A of the RSA see article. 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

Section 49 Offences involving alcohol or other drugs

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

(ca) refuses to undergo an assessment of drug impairment in accordance with section 55A when required under that section to do so or refuses to comply with any other   requirement made under section 55A(1);

(1A) A person may be convicted or found guilty of an offence under paragraph (c), (ca), (e), (ea) or (eb) of subsection (1) even if—

(a) in the case of an offence under paragraph (c), a prescribed device was not presented to the person at the time of the making of the requirement; and

(b) in the case of an offence under paragraph (ca)—

(i) a requirement to undergo an assessment of drug impairment was not made at a place where such an assessment could have been carried out; and

(ii) a police officer authorised to carry out an assessment of drug impairment was not present at the place where the requirement was made at the time it was                   made; and

(3) A person who is guilty of an offence under paragraph (ba), (c), (ca), (d), (e) or (ea) 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 120 penalty units  or to imprisonment for a term of not more than 12 months; and

(c) in the case of any other subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.