Exceed Prescribed Concentration of Drugs

In Victoria, Exceed Prescribed Concentration of Drugs (49.1.H) is found in section 49(1)(H) of the Road Safety Act 1986. It is a criminal offence that is committed by a person who was caught driving or in control of a motor vehicle and, within 3 hours from being caught, provided a sample of oral fluid which turned out to be containing illicit drug once analysed.

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 in the Magistrates’ Courts of VictoriaSentencing Statistics Pie Chart for Illicit Drugs Found in an Oral Fluid Test Within 3 Hours After Driving a Motor Vehicle in the Magistrates' Court of Victoria Between 2018 and 2021

There were a total of 12,689 charges of illicit drugs found in an oral fluid test within 3 hours after driving a motor vehicle that were heard at the VIC Magistrates’ Courts from 1 July 2018 to 30 June 2021. Majority of these charges were sentenced to a fine (8,742 or 68.9%), mostly between $500 and $1,000, although the highest imposed went to as high as $5,000 < $10,000.

Other sentences imposed were Community Correction Order (2,720 or 21.4%), adjourned undertaking (838 or 6.6%), imprisonment (307 or 2.4%), and discharge/dismissal (77 or 0.6%).

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—

  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.

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?”

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 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.

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
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