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Exceed Prescribed Concentration of Drugs

– section 49(1)(h) of Road Safety Act 1986
Drug Driving
The charge of Exceed Prescribed Concentration of Drugs is laid if a person is caught driving or is in control of a motor vehicle and within 3 hours provides a sample of oral fluid containing illicit drug once it is analysed.It is an offence to refuse to cooperate with the police when they are conducting a drug test or obtaining a blood sample.
Examples of Exceed Prescribed Concentration of Drugs
  • Driving a car with illicit drugs in your system
  • Driving a tractor on a public road with illicit drugs in your system
  • Driving a truck with illicit drugs in your system
  • Being drug tested by police 2 hours after being involved in a collision and illicit drugs are detected in your system
Questions in cases like this
  • Were you the driver of the car?
  • Are you currently taking prescription medication which can be mistaken for illicit drugs?
  • Were you tested within 3 hours of driving a car?
What are some of the possible defences to Exceed Prescribed Concentration of Drugs?

This offence is a ‘strict liability’ offence meaning that the Prosecution do not have to prove that you intended to drive with illicit drugs in your system, which limits your available defences. However, the following are a list of defences you may use:

  • The charges are filed out of time – not within 12 months of the offence date
  • The drug testing device was not used correctly or is not an approved device
  • The person taking a sample from you did not comply with statutory procedures
Maximum penalty and court that deals with this charge</5>
The maximum penalty available to a Magistrate when sentencing someone found guilty of this offence is:
  • a fine not exceeding 12 penalty units for a first offence;
  • a fine not exceeding 60 penalty units for a subsequent offence; or
  • a fine not exceeding 120 penalty units if the person has been caught more than twice.

A person who is guilty of an accompanying driver offence is liable to a fine of not more than 5 penalty units.

Each penalty unit is the equivalent to $161.19. Therefore, for an offence which carries a maximum of 12 penalty units you can be fined up to $1,934.28.

ImprisonmentIt is also open to a Magistrate to impose a term of imprisonment.

From 30 April 2018, if you are caught testing positive to traces of illegal drugs then your driver’s license will be disqualified for 6 months and you must attend a drug driver behaviour change program.

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

The offence of exceeding prescribed concentration of drugs is heard in the Magistrates’ Court.

What is the legal definition of Exceed Prescribed Concentration of Drugs?

The Road Safety Act 1986 (Vic) defines a ‘motor vehicle’ as:

any vehicle which is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle but does not include—

  1. a vehicle intended to be used on a railway or tramway; or
  2. a motorised wheel-chair capable of a speed of not more than 10 kilometres per hour which is used solely for the conveyance of an injured or disabled person.
Legislation

The legislation for this offence can be found on section 49(1)(h) of Road Safety Act 1986.

Elements of the offence

To prove this charge, the prosecution must satisfy the magistrate beyond reasonable doubt of the following elements:

  1. the accused drove or was in control of a motor vehicle, and
  2. the accused within 3 hours of that driving or being in control provided a sample of oral fluid, and
  3. the analysis showed that a prescribed illicit drug was present. The presence of the drug was not due solely to the consumption or use of a drug after the driving or being in charge of the motor vehicle.
“Can the Prosecution prove that you were driving with drugs in your system?”
Sentencing in the Magistrates’ Courts

There were 3,897 cases (4,228 charges) of Exceed Prescribed Concentration of Drugs that were heard in the Magistrates’ Courts of Victoria from 1 July 2013 to 30 June 2016. The majority of these cases resulted in financial penalties (66.4%) followed by Community Correction Orders (15.7%), imprisonment (11.7%), adjourned undertaking/discharge/dismissal (3.2%), and wholly suspended sentences (2.3%).

There were also a few who received partially suspended sentences (0.5%), Youth Justice Centre Order (0.1%), and other (0.1%) sentencing options.

Of the fines imposed, the highest was in the $5,000 < $10,000 category (0.2% for aggregate) but the majority received a fine in the $500 < $1,000 (28.0% for non-aggregate) and $1,000 < $2,000 (22.8% aggregate) categories.

Of the prison sentences imposed, 24 < 36 months was imposed to 1.3% of those who were given gaol terms but the majority were sentenced to < 3 months (37.34%).1

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.2
 
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[1] SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(h) – illicit drugs in oral fluid within 3 hours after driving motor vehicle < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/86_127_49_1_h.html >
[2] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >