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

Sentencing
Sentencing in the Magistrates’ Courts of Victoria


[1] Sentencing Advisory Council. Abolished Sentencing Orders, accessed February 5, 2021, https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders.
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.
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.
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?
The maximum penalty for Driving While Exceeding the Prescribed Concentration of Alcohol (s49(1)(f) of the Road Safety Act 1986) 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).
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.
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%).1Sentencing 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%
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
[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 >
Other important resources
- SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(f) – exceed prescribed concentration within 3 hours after driving – breath analysis
- Drink Driving Lawyers: Driving while exceeding the prescribed concentration of alcohol (Drunk Driving)
- FindLaw: Driving While Exceeding the Prescribed Concentration of Alcohol (section 49.1.f)
- An inconvenient truth: Legal implications of errors in breath alcohol analysis arising from statistical uncertainty