Author: Kristina Kothrakis
Practice area: Drug Driving
Kristina is a Director at Doogue + George and an LIV Accredited Criminal Law Specialist with over 18 years of criminal defence experience. Her depth of experience in this area means clients receive accurate, considered advice.
View full profile →Kristina authored this content and last revised it for accuracy on 5th August 2026.
What is the offence of Exceed Prescribed Concentration of Drugs?
Exceed Prescribed Concentration of Drugs is an offence under section 49(1)(h) of the Road Safety Act 1986 (Vic). It applies where illicit drugs are detected in an evidentiary oral fluid sample taken within 3 hours after driving or being in control of a motor vehicle.
Key points
- Must be proved: driving/in control + oral fluid sample within 3 hours + analysis shows a prescribed illicit drug (not solely from post-driving use)
- Type of conduct: illicit drugs detected in evidentiary oral fluid testing linked to recent driving or control
- Usual court level: Magistrates’ Court
The maximum penalty for Exceed Prescribed Concentration of Drugs is a fine not exceeding 12 penalty units - $2,509.20 — as at 2026–27 (first offence), 60 penalty units - $12,546.00 — as at 2026–27 (subsequent offence), or 120 penalty units - $25,092.00 — as at 2026–27 (caught more than twice).
Common defences may include charges filed out of time (not within 12 months of the offence date); drug testing device not used correctly or not an approved device; non-compliance with statutory sampling procedures.
Have you been accused of Exceed Prescribed Concentration of Drugs (49.1.H)? This offence attracts a mandatory disqualification of your driver’s licence and must be handled properly to ensure you get the best outcome. Our firm has lawyers who specialize in traffic matters and are ready to answer your important legal questions.
Police Interview
If the Police suspect you are driving while Exceeding the Prescribed Concentration of Drugs, they will take you back to the Police station or a booze bus to provide an evidentiary sample of saliva.
While there, they will ask you questions. The answers you provide during the interview will be written down by the arresting Police officer and will be provided in evidence against you in Court.
Do not be under any misapprehensions, the Police only ask questions to compile their case against you and hopefully get admissions from you to bar you from running a defence.
Pleading Not Guilty
If you would like to contest a charge of Exceeding the Prescribed Concentration of Drugs because of a factual dispute, one of our experienced traffic lawyers, can look at the brief of evidence and advise you of the best approach. In defending a case such as this, you may need to engage a toxicologist who can provide expert evidence to undermine the Police case.
Our lawyers are experienced Court advocates and will advance your interests effectively.
Pleading Guilty
Our lawyers have decades of experience in representing people who plead guilty to Exceeding the Prescribed Concentration of Drugs. Our lawyers know what information should be presented to a Magistrate at the Plea Hearing to get the best outcome and keep your time off the road to the minimum.
Our lawyers will direct you to:
- A road trauma course
- a drug counsellor
- obtain urine screens
Sentencing
Sentencing in the Higher Courts of Victoria
Source: Sentencing Advisory Council of Victoria (SACStat), Road Safety Act 1986 (Vic) s 49(1)(h) — 16 charges, higher courts, 1 July 2019 – 30 June 2024.
| Sentencing outcome | % |
|---|---|
| Fine | 62.5% |
| Other | 31.2% |
| Imprisonment | 6.2% |
These figures indicate that financial penalties are the most common disposition, with custody imposed in a relatively small proportion of matters. Although imprisonment is available, it is not the usual outcome at this level. As with all offences, sentencing depends on the specific circumstances of the case, including prior history and the seriousness of the conduct. Careful preparation and experienced advocacy remain critical to achieving the best possible result.
Sentencing in the Magistrates’ Courts of Victoria
Source: Sentencing Advisory Council of Victoria (SACStat), Road Safety Act 1986 (Vic) s 49(1)(h) — 15,434 charges across 12,861 cases, Magistrates’ Court, 1 July 2020 – 30 June 2023.
| Sentencing outcome | % |
|---|---|
| Fine | 74.0% |
| Community Correction Order | 16.2% |
| Adjourned Undertaking | 7.6% |
| Imprisonment | 1.5% |
| Discharge/Dismissal | 0.6% |
| Other | 0.1% |
These figures indicate that custody is possible but uncommon. Courts generally favour financial penalties or supervised community-based orders. The ultimate sentence will depend on factors such as prior history, the circumstances of the offending and any rehabilitative steps taken before court. Skilled representation can significantly influence the result.
Which court will the case be heard in?
The offence of exceeding prescribed concentration of drugs is heard in the Magistrates’ Court.
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
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—
- a vehicle intended to be used on a railway or tramway; or
- 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:
- the accused drove or was in control of a motor vehicle, and
- the accused within 3 hours of that driving or being in control provided a sample of oral fluid, and
- 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?
Defences
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
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?
Maximum penalty for section 49(1)(h) of Road Safety Act 1986
The maximum penalty available to a Magistrate when sentencing someone found guilty of Exceed Prescribed Concentration of Drugs (s49(1)(h) of Road Safety Act 1986) is:
- a fine not exceeding 12 penalty units ($2,509.20 — as at 2026–27) for a first offence;
- a fine not exceeding 60 penalty units ($12,546.00 — as at 2026–27) for a subsequent offence; or
- a fine not exceeding 120 penalty units ($25,092.00 — as at 2026–27) 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 $209.10. Therefore, for an offence which carries a maximum of 12 penalty units you can be fined up to $2,509.20 — as at 2026–27.
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.
Other important resources
- SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(h) – illicit drugs in oral fluid within 3 hours after driving motor vehicle
- Drink Driving Lawyers: Exceed Prescribed Concentration of Drugs
