Exceed Prescribed Concentration of Drugs (Drug Driving)

Published Updated September 13, 2018 · Updated Updated March 2, 2023

Exceed Prescribed Concentration of Drugs (Drug Driving) is found in section 49(1)(i) of the Road Safety Act 1986 in Victoria. It is committed by a person who was found to have been driving or have been in charge of a motor vehicle and has had a sample of blood taken from them in accordance with section 55, 55B, 55BA, 55E or 56 of the Road Safety Act 1986, within 3 hours after the driving or being in charge of the vehicle. The sample blood taken must have shown the presence of prescribed illicit drug and that it was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle.

Have you been accused of Exceed Prescribed Concentration of Drugs (Drug Driving)?

Police Interview

The Police are trained in interview techniques that encourage you to reveal information that assist their case. The Police are interested in strengthening their case when they interview you about an allegation of Exceed Prescribed Concentration of Drugs. You don’t want to compromise your position by speaking to the Police without getting legal advice first.

Please call us to get advice about how to deal with an allegation of Exceed Prescribed Concentration of Drugs.

Pleading Not Guilty

If you are pleading not guilty in the Magistrates’ Court to an offence of Exceed Prescribed Concentration of Drugs, the matter will proceed to a contested hearing. This is where a Magistrate hears the evidence and makes a determination. It may be beneficial for you to give evidence, which is a carefully considered decision.

Our lawyers know how to pick apart a weak prosecution case and are expert cross examiners. We may try to find evidence that supports your version of events.

Pleading Guilty

If you are pleading guilty to Exceed Prescribed Concentration of Drugs, it is important for you to understand that this charge attracts mandatory disqualification periods on your driver’ licence. This can be devastating for someone who relies on their driver’s licence for work. Our lawyers can advise you of the implications and can make submissions on your behalf to avoid more time off the road.

Our lawyers appear in the Magistrates’ Court daily and know what submissions work. They can also direct you to offence specific courses which will help your position.

Sentencing

Sentencing in the Higher Courts of VictoriaSentencing in the Magistrates’ Courts of Victoria

Which court will the case be heard in?

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.

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.

What is the legal definition of Exceed Prescribed Concentration of Drugs (Drug Driving)?

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.

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:

The person has had a blood sample taken from them within three hours after driving or being in control of a motor vehicle;
The blood sample was analysed by a properly qualified analyst;
The analyst has found a prescribed illicit drug was present in the sample in any concentration;
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]’.¹ 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 breathalysing instrument being used to measure the quantity of alcohol in their breath is faulty.² The person taking the blood sample must be a registered medical professional or approved health professional.³

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.⁴

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:⁵

(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.

Defences

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.

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?

Maximum penalty for section 49(1)(i) of the Road Safety Act 1986

The maximum penalty for Exceed Prescribed Concentration of Drugs (Drug Driving) (s49(1)(i) of the Road Safety Act 1986) depends on the how many times a person has committed this offence.⁶

In the case of a first offence, the maximum penalty is 12 penalty units.⁷

In the case of a second offence, the maximum penalty is 60 penalty units.⁸

In the case of a third offence, the maximum penalty is 120 penalty units.⁹

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.¹⁰ As such, the maximum fine for this offence is liable to change.

Other important resources

Case studies related to Exceed Prescribed Concentration of Drugs (Drug Driving)

_{[1] Road Safety Act 1986 (Vic) s 49(1)(i)
[2] Road Safety Act 1986 (Vic) s 55(9A)
[3] Road Safety Act 1986 (Vic) s 55(9A)
[4] Road Safety Act 1986 (Vic) s 57(1)(a)
[5] Road Safety Act 1986 (Vic) s 3
[6] Road Safety Act 1986 (Vic) s 49(3AAA)
[7] Road Safety Act 1986 (Vic) s 49(3AAA)
[8] Road Safety Act 1986 (Vic) s 49(3AAA)
[9] Road Safety Act 1986 (Vic) s 49(3AAA)
[10] http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/}

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