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Exceed PCA

– section 49(1)(g) of the Road Safety Act 1986
Exceed PCA
The charge of Exceed PCA (Prescribed Concentration of Alcohol) applies when someone drives with more than the prescribed concentration of alcohol present in their bloodstream.
Examples of Exceed PCA
  • A person with a full drivers licence delivers a blood sample within three hours of driving or being in charge of a motor vehicle, and after analysis the blood sample returns a blood alcohol reading of 0.09 (or any reading greater than 0.05).
  • A person with a probationary drivers licence delivers a blood sample within three hours of driving or being in charge of a motor vehicle, and after analysis the blood sample returns a blood alcohol reading of 0.03 (or any reading greater than 0.00).

Questions in cases like this

  • Was the sample taken within three hours of the person driving or being in charge of a motor vehicle?
  • Was the blood sample analysed within 12 months of being taken?
  • Was the alcohol entirely introduced to the person’s system after they stopped driving or being in control of a vehicle?
What are some of the possible defences to Exceed PCA?

Some possible defences to this charge include:

  • There was a faulty analysis (this could be due to a technical issue with the lab results or the sample not being analysed within 12 months);
  • The blood sample was not taken within three hours of the person driving;
  • The presence of alcohol in the blood sample was solely due to the consumption or use of alcohol after driving or being in charge of a motor vehicle.
Maximum penalty and court that deals with this charge

The maximum penalty for this offence depends on the how many times a person has committed this offence and the concentration of the alcohol in the person’s blood.1

In the case of a first offence, the maximum penalty is 20 penalty units (a $3223.80 fine).

In the case of a second offence:

  • 6 months imprisonment and/or 60 penalty units (a $9671.40 fine) if the concentration of alcohol is less than 0.15 grams per 100 millilitres of blood;
  • 12 months imprisonment and/or 120 penalty units (a $19342.80 fine) if the concentration of alcohol in the person’s blood was 0.15 grams or more per 100 millilitres of blood.

In the case of a third or subsequent offence:

  • 12 months imprisonment and/or 120 penalty units (a $19342.80 fine) if the concentration of alcohol in the person’s blood was less than 0.15 grams per 100 millilitres of blood;
  • 18 months imprisonment and/or 180 penalty units (a $29014.20 fine) if the concentration of alcohol in the person’s blood was 0.15 grams or more per 100 millilitres of blood.

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

New legislation came into effect on 30 April 2018 that requires anybody found guilty of Exceed PCA to lose their licence, to complete a Behaviour Change Program before regaining their licence and to have an alcohol interlock device fitted to their vehicle for at least six months.2 The length of licence cancellation and alcohol interlock period will depend on the concentration of alcohol present in the person’s bloodstream.

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.3 As such, the maximum fine for this offence is liable to change.

The offence of drink driving Exceed PCA is ordinarily heard in the Magistrates Court, however the offence is occasionally heard in the higher courts.

What is the legal definition of Exceed PCA?

The legal definition of this offence is:

  1. A person is guilty of an offence if he or she—
    1. 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—
      1. the sample has been analysed within 12 months after it was taken by a properly qualified analyst within the meaning of section 57 and the analyst has found that at the time of analysis the prescribed concentration of alcohol or more than the prescribed concentration of alcohol was present in that sample; and
      2. 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.

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Legislation

The relevant legislation for this offence is section 49(1)(g) of the Road Safety Act 1986.

Elements of the offence

The elements the prosecution must prove for a person to be guilty of this offence are:

  1. The person has had a blood sample taken from them within three hours after driving or being in control of a motor vehicle;
  2. The blood sample was analysed within 12 months after it was taken by a properly qualified analyst;
  3. The analyst has found more than the prescribed concentration of alcohol present in the blood sample;
  4. The concentration of alcohol found in the sample was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle.

Element 1: The person has had a blood sample taken from them within three hours after driving or being in control of a motor vehicle
The person must have had the blood sample taken from them within three hours after driving or being in control of a motor vehicle. If the sample was taken after more than three hours has elapsed between the sample being taken and driving or being in control of a motor vehicle, the offence will not apply.

“Did they take the sample within three hours of driving?”

The blood sample must be taken ‘in accordance with 55, 55B, 55BA, 55E or 56 [of the Act]’.4 This means that a person must only give a blood sample if they are unable to give a breath sample because of a physical disability or if the breathalyzing instrument being used to measure the quantity of alcohol in their breath is faulty.5 The person taking the blood sample must be a registered medical professional or approved health professional.6

The person must have been ‘driving’ or ‘in control of’ a vehicle. This will be the case when the person is in control of the vehicle’s movement. Examples of being in control of a vehicle’s movement include a person sitting in the driver’s seat of a car and causing the car to move using the accelerator and steering wheel; or a person propelling a motorcycle by applying the accelerator and steering using the handlebars and leaning.

Element 2: The blood sample was analysed within 12 months after it was taken by a properly qualified analyst
The blood sample must be analysed within 12 months of being provided. If the blood sample is analysed more than a year after being provided, this offence will not apply.

The blood sample must be taken by a properly qualified analyst. A ‘properly qualified analyst’ is a person who is an approved analyst, a person who carries out the analysis in an approved laboratory, or any person the Magistrate or Judge deems to have sufficient scientific qualifications, training and experience to carry out the analysis.7

Element 3: The analyst has found more than the prescribed concentration of blood alcohol present in the blood sample
There must be more than the prescribed concentration of alcohol present in the blood sample for this offence to apply.

In most cases, the prescribed concentration of alcohol is 0.05 grams of alcohol per 100 millilitres of blood.8

The prescribed concentration of alcohol is 0.00 grams of alcohol per 100 millilitres of blood for the following people:9

  • Drivers on their L or P plates;
  • Holders of a P1 or P2 licence;
  • Restricted motorcycle riders (shown as an ‘E’ condition); and
  • Professional drivers (e.g. taxi drivers, truck drivers and bus drivers).

Element 4: The concentration of alcohol found in the sample was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle
This offence will not apply if the alcohol found in the sample was due solely to the consumption of alcohol after being in charge of the motor vehicle.

This means the offence will not apply if the alcohol found in the sample was entirely ingested after the person ceased to be in control of the motor vehicle.

Sentencing in the higher courts

Higher CourtFrom 1 July 2011 to 30 June 2016, there were 9 charges of Exceed PCA that were heard in the higher courts of Victoria. Of these charges, 50% led to imprisonment, 40% to a fine, and 10% to a Community Correction Order.10

Sentencing in the Magistrates’ Courts

In the Magistrates’ Courts, 984 cases (989 charges) of Exceed PCA were heard between 1 July 2013 and 30 June 2016. The majority of these cases resulted in fines (68.7%).

Other penalties included:

  • Community Correction Order (15.9%)
  • Imprisonment (5.4%)
  • Adjourned Undertaking/Discharge/Dismissal (5.1%)
  • Wholly Suspended Sentence (4.3%)
  • Partially Suspended Sentence (0.7%)

Of the fines imposed, the highest was in the $4,000 < $5,000 category and was given to 0.1% of those who were fined (0.1% for aggregate). The majority of fines were in the $500 < $1,000 category (30.1% for aggregate and 18.4% for non-aggregate).11

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.12

Other important resources
Media information
Case studies related to Exceed PCA

 



[1] Road Safety Act 1986 (Vic) s 49(2A)
[2] https://www.vicroads.vic.gov.au/safety-and-road-rules/road-rules/a-to-z-of-road-rules/alcohol-and-other-drugs
[3] http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/
[4] Road Safety Act 1986 (Vic) s 49(1)(g)
[5] Road Safety Act 1986 (Vic) s 55(9A)
[6] Road Safety Act 1986 (Vic) s 55(9A)
[7] Road Safety Act 1986 (Vic) s 57(1)(a)
[8] Road Safety Act 1986 (Vic) s 3
[9] Road Safety Act 1986 (Vic) s 52
[10] SACStat Higher Courts – Road Safety Act 1986 (Vic) : s 49(1)(g) – exceed prescribed concentration within 3 hours after driving – blood test < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_86_127_49_1_G.html >
[11] SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(g) – exceed prescribed concentration within 3 hours after driving – blood test < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/86_127_49_1_g.html >
[12] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >