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Exceed Prescribed Concentration of Drugs (Drug Driving)

– section 49(1)(i) of the Road Safety Act 1986
Drug Driving
The charge of Exceed Prescribed Concentration of Drugs (Drug Driving) applies when someone drives with any concentration of prescribed illicit drugs in their bloodstream.
Examples of Exceed Prescribed Concentration of Drugs (Drug Driving)
  • A person 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 reading of illicit drugs in the person’s system of any concentration.
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 by a properly qualified analyst?
  • Was the illicit drug 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 Prescribed Concentration of Drugs (Drug Driving)?

Some possible defences to this charge include:

  • There was a faulty analysis (this could be due to a technical issue with the lab results);
  • The blood sample was not taken within three hours of the person driving;
  • The presence of prescribed illicit drugs in the blood sample was solely due to the consumption or use of prescribed illicit drugs 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.1

In the case of a first offence, the maximum penalty is 12 penalty units (a $3223.80 fine).2

In the case of a second offence, the maximum penalty is 60 penalty units (a $9671.40 fine).3

In the case of a third offence, the maximum penalty is 120 penalty units (a $19342.80 fine).4

The offence of exceeding prescribed concentration of drugs (drug driving) is primarily heard in the Magistrates’ Court. The offence may be heard in the high courts in combination with other charges.

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.5 As such, the maximum fine for this offence is liable to change.

What is the legal definition of Exceed Prescribed Concentration of Drugs (Drug Driving)?
  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 by a properly qualified analyst within the meaning of section 57 and the analyst has found that at the time of analysis a prescribed illicit drug was present in that sample of any concentration; and
      2. the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle.

 
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Legislation

This is legislation that comes from section 49(1)(i) 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 by a properly qualified analyst;
  3. The analyst has found a prescribed illicit drug was present in the sample in any concentration;
  4. The concentration of the illicit drug in the sample was not due solely to the consumption of the drug 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 driving or being in control of a motor vehicle, the offence will not apply.

“Was the sample taken within three hours of you being in control of the vehicle?”

The blood sample must be taken ‘in accordance with 55, 55B, 55BA, 55E or 56 [of the Act]’.6 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.7 The person taking the blood sample must be a registered medical professional or approved health professional.8

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 by a properly qualified analyst
The blood sample must be analysed 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 deems to have sufficient scientific qualifications, training and experience to carry out the analysis.9

Element 3: The analyst has found any concentration of prescribed illicit drug present in the blood sample
There must be prescribed illicit drug present in the blood sample in any concentration for the offence to apply.

‘Prescribed illicit drug’ means:10

  • (a) methylamphetamine; or
  • (ab) 3, 4-Methylenedioxy- N -Methylamphetamine (MDMA); or
  • (c) delta-9-tetrahydrocannabinol.

Element 4: The concentration of prescribed illicit drug 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 prescribed illicit drug found in the sample was due solely to the consumption of the drug after being in charge of the motor vehicle.

This means the offence will not apply if the prescribed illicit drug 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 CourtThere were 10 charges of Exceed Prescribed Concentration of Drugs (Drug Driving) that were heard in Victorian higher courts from 1 July 2011 to 30 June 2016. 8 resulted in a fine (80%), 1 in a Community-Based Order (10%), and the other 1 (10%) in imprisonment.11

Sentencing in the Magistrates’ Courts

In the Magistrates’ Court, 487 cases (491 charges) of Exceed Prescribed Concentration of Drugs (Drug Driving) were heard from 1 July 2013 to 30 June 2016. These resulted in the following sentences:

  • Fine – 54.8%
  • Community Correction Order – 21.4%
  • Imprisonment – 14.8%
  • Wholly Suspended Sentence – 3.9%
  • Adjourned Undertaking/Discharge/Dismissal – 3.7%
  • Partially Suspended Sentence – 0.8%
  • Other – 0.6%

Of those who received financial penalties, 30.0% (aggregate) and 17.1% (non-aggregate) were in the “$500 < $1,000” category. This was the category of fine most frequently imposed during the period. The highest category was “$5,000 < $10,000” but this was given to only 0.3% (aggregate) of those who were fined.

Of those who were given a prison sentence, the longest term imposed was 36+ months but this was handed down to only 1.34% of those were sentenced to imprisonment. The majority (37.5%) was sentenced to “3 < 6 months”.12

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.13

Other important resources
Media Information
Case studies related to Exceed Prescribed Concentration of Drugs (Drug Driving)

 



[1] Road Safety Act 1986 (Vic) s 49(3AAA)
[2] Road Safety Act 1986 (Vic) s 49(3AAA)
[3] Road Safety Act 1986 (Vic) s 49(3AAA)
[4] Road Safety Act 1986 (Vic) s 49(3AAA)
[5] http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/
[6] Road Safety Act 1986 (Vic) s 49(1)(i)
[7] Road Safety Act 1986 (Vic) s 55(9A)
[8] Road Safety Act 1986 (Vic) s 55(9A)
[9] Road Safety Act 1986 (Vic) s 57(1)(a)
[10] Road Safety Act 1986 (Vic) s 3
[11] SACStat Higher Courts – Road Safety Act 1986 (Vic) : s 49(1)(i) – illicit drugs in blood sample within 3 hours of driving motor vehicle < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_86_127_49_1_I.html >
[12] SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(i) – illicit drugs in blood sample within 3 hours of driving motor vehicle < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/86_127_49_1_i.html >
[13] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >