Have you been charged with Exceeding the Prescribed Concentration of Drugs and Alcohol (Blood Analysis) within 3 Hours of Driving or being in Charge of a Motor Vehicle?
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What does it mean to be charged with ExPCA of drugs and alcohol within 3 hours of driving or being in charge of a motor vehicle?
Section 49(1)(j) of the Road Safety Act 1986 (“RSA”) prohibits individuals from driving or being in charge of a motor vehicle if a blood sample taken within three hours shows the presence of a prescribed illicit drug and an alcohol concentration exceeding the prescribed limit (“PCA”).
The offence occurs when the blood analysis detects a prescribed illicit drug, such as methylamphetamine or THC, alongside an alcohol concentration of 0.05 grams per 100 millilitres of blood or higher. Unlike alcohol, any trace of a prescribed illicit drug is considered illegal.
What must the prosecution prove?
To establish an offence under section 49(1)(j), the following elements must be demonstrated:
- You were operating or in control of a motor vehicle.
- A lawful request was made for you to provide a blood sample for analysis, as stipulated in the relevant sections of the Road Safety Act (RSA).
- You consented to the collection of the blood sample for the purpose of analysis.
- The blood sample was taken within three hours of you last driving the vehicle.
- The collection of the blood sample adhered to proper procedures and was conducted by an authorised individual.
- The analysis of the blood sample revealed the presence of a prescribed illicit drug.
- The test results indicated that the individual’s blood alcohol concentration (BAC) met or exceeded the prescribed concentration of alcohol (PCA) of 0.05 or above (or 0.00-0.05 for learner or probationary drivers).
The detected BAC level was not solely attributable to drugs or alcohol consumed after you had been driving or in control of the motor vehicle.
What are prescribed Illicit Drugs?
A “prescribed illicit drug” includes:
- Methylamphetamine (ice or speed)
- MDMA
- THC (in any concentration)
Note: Unlike alcohol, any trace of a prescribed illicit drug in the blood sample contravenes the law.
What is prescribed concentration of alcohol (PCA):
The definition of “prescribed concentration of alcohol” is as follows:
- A concentration of alcohol present in the blood of 0.05 grams per 100 millilitres of blood (unless zero is required under section 52 of the RSA).
What are the procedures for blood sample collection?
Section 55: Request for Blood Sample
Police can request a blood sample if:
- The person is unable to provide a breath sample due to medical grounds or physical disability.
- The breath analysis instrument is incapable of measuring the alcohol concentration.
Section 55B: Drug Impairment Assessment
If a person undergoes an assessment for drug impairment and is deemed impaired by the officer, they may be required to provide a blood sample.
Section 55BA: Involved in Serious Incidents
In incidents where a motor vehicle accident results in death or serious injury, police may direct a blood sample for analysis.
Section 56: Blood Samples in Medical Situations
A person aged 15 or over must allow a blood sample to be taken if they are brought to a medical facility following an accident involving a motor vehicle.
Penalties for Offences Involving Alcohol or Other Drugs: Exceed Prescribed Concentration of an Illicit Drug and exceed PCA (Blood Analysis) within 3 hours of driving:
The penalties for an offence against section 49(1)(j) are outlined in section 49(3AAB):
- First Offence:
- Fine of 30 penalty units.
- Second Offence:
- If BAC is less than 0.15:
- Fine of 90 penalty units or imprisonment for 6 months.
- If BAC is 0.15 or more:
- Fine of 180 penalty units and imprisonment for 12 months.
- If BAC is less than 0.15:
- Third or Subsequent Offence:
- If BAC is less than 0.15:
- Fine of 180 penalty units and imprisonment for 12 months.
- If BAC is 0.15 or more:
- Fine of 270 penalty units and imprisonment for 18 months.
- If BAC is less than 0.15:
Additionally, the court must suspend the person’s driver licence or learner permit and disqualify them from driving for a minimum period as set in Schedule 1AB of the RSA.
Where will my case be heard?
Driving offences involving alcohol or drugs under this section will be heard in the Magistrates Court.
Factors and Defence Considerations:
Questions to consider for a potential defence include:
- Was it longer than three hours since the last time you drove a vehicle?
- Did you consume any drugs or alcohol between driving and being tested?
- If pleading guilty, what steps can be taken to minimise the sentence?
- Do you have any prior convictions of a similar nature?
- Did police act in accordance too their statutory procedures when undertaking their testing?
- What were the surrounding circumstances of this offence?
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What happens next?
If you have been charged with involving alcohol or other drugs: ExPCA of an illicit drug and ExPCA (Blood Analysis) within 3 hours of driving, it is essential to seek legal representation promptly. Contacting MK Law will provide you with expert guidance through the legal process, starting with your required court appearance, where you can enter your plea. Your lawyer will thoroughly review the evidence against you, develop a defence strategy, and explore potential mitigating factors if you are found guilty.
Whether you choose to plead guilty or not guilty, having experienced legal counsel is crucial to protecting your rights and navigating the complexities of your case. Don’t hesitate to reach out to MK Law on 1800 130 120 for a consultation to discuss your situation and determine the best course of action.
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