Exceeding the Prescribed Concentration of Alcohol (Section 49.1.F)

– section 49(1)(f) of the Road Safety Act 1986

The charge of Driving While Exceeding the Prescribed Concentration of Alcohol (section 49.1.F) is generally laid in situations where a person, within 3 hours after driving or being in charge of a motor vehicle, furnishes a sample of breath for analysis by a breath analyzing instrument under section 55.

The result of the analysis must then show that the prescribed concentration of alcohol or more is present in the breath of the person and the concentration of alcohol indicated by the analysis is not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle.

In the last decade, there has been a cultural shift in attitudes towards drink driving and these offences are now taken very seriously – especially if the offender’s alcohol concentration is high and it is not their first offence. It’s important to get legal advice and representation if you are charged with drink-driving, as you may be faced with a hefty fine and possible gaol time.

Examples of Driving While Exceeding the Prescribed Concentration of Alcohol (Section 49.1.F)

You go out with your friends and have a few beers, and decide to drive home. Police observe you speeding on your way home. They run a check on your licence plates and obtain your address. They turn up at your house within three hours and ask you to blow into a breath analysing instrument.

Questions in cases like this

Did you start drinking after you drove the car?
Was the breath-analysing instrument working properly?
Was your breath tested more than three hours after you drove the car?
Were you the one actually driving, or were you just a passenger?

What are some of the possible defences to Driving While Exceeding the Prescribed Concentration of Alcohol (Section 49.1.F)?

Defences to this can be a factual dispute or that the breath-analysing instrument used was not in proper working order or was not properly operated. The concept of beyond reasonable doubt as well as charges being statute barred may also be used in court depending on the circumstance surrounding the case.

Maximum penalty and court that deals with this charge

The maximum penalty for Driving While Exceeding the Prescribed Concentration of Alcohol (Section 49.1.F) depends on the number of offences committed and the concentration of the alcohol in the person’s blood.

First offence: 20 penalty units (approximately $3223).

Prison Second offence: 6 months prison and/or 60 penalty units (approximately $9671) if the concentration of alcohol is less than 0.15 grams per 100 millilitres of blood; or in the person’s breath was less than 0.15 grams per 210 litres of exhaled air as the case requires. 12 months and/or 120 penalty units (approximately $19,342) if the concentration of alcohol in the person’s blood was 0x15 grams or more per 100 millilitres of blood; or in the person’s breath was 0.15 grams or more per 210 litres of exhaled air as the case requires.

Subsequent offence: 12 months and/or 120 penalty units (approximately $19,342) if the concentration of alcohol in the person’s blood was less than 0.15 grams per 100 millilitres of blood; or in the person’s breath was less than 0.15 grams per 210 litres of exhaled air as the case requires. 18 months/180 penalty units (approximately $29014) if the concentration of alcohol in the person’s blood was 0.15 grams or more per 100 millilitres of blood; or in the person’s breath was 0.15 grams or more per 210 litres of exhaled air as the case requires.

New regulations that came into effect from 31 January 2018 mean that Victorian offenders will face Victorian driving penalties should they be caught interstate.

This offence is the sort of charge regularly heard in the Magistrates’ Court.

Legislation

This is legislation that comes from section 49(1)(f) of the Road Safety Act 1986.

Elements of the offence

In essence, to prove this charge the Police must show that:

The accused drove or was in charge of a motor vehicle, and
The accused gave a sample of breath within 3 hours of that driving or being in charge of the motor vehicle, and
The result showed that the accused had the prescribed concentration of alcohol or more present in the accused’s breath, and
The result was not due solely to the consumption of alcohol after the driving or being in control of the vehicle.

Sentencing in the higher courts

From 1 July 2011 to 30 June 2016, there were a total of 18 charges of Driving While Exceeding the Prescribed Concentration of Alcohol (Section 49.1.F) that were heard by the higher courts in Victoria. These charges resulted in imprisonment (50%), fine (44.4%), and Community Correction Order (5.6%).¹

Sentencing in the Magistrates’ Courts

In the Magistrates’ Courts, there were a total of 16,626 cases (14,037 charges) of Driving While Exceeding the Prescribed Concentration of Alcohol (Section 49.1.F) that were heard from 1 July 2013 to 30 June 2016. Financial penalty was imposed in the majority (77.1%) of these cases although various other sentencing options were also handed down:

Community Correction Order – 12.6%
Adjourned Undertaking/Discharge/Dismissal – 3.8%
Wholly Suspended Sentence – 3.1%
Imprisonment – 3.0%
Partially Suspended Sentence – 0.4%

Most of those who were sentenced to a fine were in the $500 < $1,000 category (21.7% for aggregate and 31.4% for non-aggregate) but the highest imposed was in the $5,000 < $10,000 category, although the latter was given to only 0.1% of those who were sentenced to a financial penalty.

Of the prison sentences imposed, the longest was 36+ months but this was imposed to only 0.2% of those who received a prison term. The majority (43.2%) received a term of less than 3 months.²

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.³

Other important resources

Case studies related to Driving While Exceeding the Prescribed Concentration of Alcohol (Section 49.1.F)

[1] SACStat Higher Courts – Road Safety Act 1986 (Vic) : s 49(1)(f) – exceed prescribed concentration within 3 hours after driving – breath analysis < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_86_127_49_1_F.html >
[2] SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(f) – exceed prescribed concentration within 3 hours after driving – breath analysis < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/86_127_49_1_f.html >
[3] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >