Have you been Charged with ExPCA (Blood Analysis) of alcohol and drugs within 3 Hours of Driving of being in Charge of a Motor Vehicle?
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Driving While Impaired by a Drug
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Exceeding the Prescribed Concentration of Drugs Present in the Body
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Driving Over the Concentration of Drug and Alcohol Limit
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Refusing to Undergo an Assessment for Drug Impairment
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Refusing to Comply With Directions to Provide Additional Samples for Analysis
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Refusing to Undergo an Oral Fluid Test
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Exceeding the Prescribed Concentration of an Illicit Drug (Blood Analysis) within 3 Hours of Driving or being in Charge of a Motor Vehicle
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Expca (Blood Analysis) of Alcohol and Drugs Within 3 Hours of Driving of Being in Charge of a Motor Vehicle
What does it mean to be charged with ExPCA of alcohol and drugs within 3 hours of driving or being in charge of a motor vehicle?
Section 49 of the Road Safety Act (“RSA”) pertains to offences involving alcohol and other drugs when driving. Specifically, paragraph (j) addresses the situation where a person has had a blood sample taken after driving or overseeing a vehicle, and that sample indicates the presence of both alcohol and a prescribed illicit drug.
Section 49(1)(j) is frequently charged alongside section 49(1)(bc) as an alternative charge. When an accused pleads guilty, the prosecution typically opts to pursue the section 49(1)(j) charge while withdrawing the section 49(1)(bc) charge, as the former is generally easier for them to establish in court.
What the Prosecution Must Prove:
To be found guilty of this offence, the prosecution must demonstrate the following elements:
- The blood sample must be taken within three hours after the individual was driving or in charge of a motor vehicle.
- The sample must be taken in accordance with the relevant sections of the RSA (sections 55, 55B, 55BA, 55E, or 56) by an authorised person.
- The blood sample must be analysed within 12 months of collection by a properly qualified analyst, as defined in section 57.
- The analysis must show that:
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- The sample contained either the prescribed concentration of alcohol or a higher concentration.
- A prescribed illicit drug was present in the sample in any concentration.
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It must be proven that the concentration of alcohol and the presence of the illicit drug were not solely due to their consumption after the individual had driven or been in charge of the vehicle.
What are considered Illicit Drugs?
A “prescribed illicit drug” refers to substances such as methylamphetamine (commonly known as ice or speed), MDMA, and THC, regardless of the concentration (refer to section 3(1)). Unlike alcohol, the presence of any amount of a prescribed illicit drug in a blood sample is a violation of the law.
What does Prescribed Concentration of Alcohol mean?
The term “prescribed concentration of alcohol” is defined in section 3(1) of the RSA as follows: it is a blood alcohol concentration of 0.05 grams per 100 millilitres of blood, unless a zero concentration is mandated by section 52 of the RSA. Any amount exceeding this limit is considered a breach of the prescribed concentration of alcohol (PCA).
Penalties for an offence ExPCA of an illicit drug and exceed PCA (blood analysis) within 3 hours of driving:
The penalties for being found guilty of this charge are listed in 49(3AAB) and are as follows:
- First Offence:
- A fine of up to 30 penalty units.
- Second Offence:
- If the blood alcohol concentration is less than 0.15 grams per 100 millilitres of blood (or equivalent in breath):
- A fine of up to 90 penalty units or imprisonment for up to 6 months.
- If the blood alcohol concentration is 0.15 grams or more:
- A fine of up to 180 penalty units or imprisonment for up to 12 months.
- If the blood alcohol concentration is less than 0.15 grams per 100 millilitres of blood (or equivalent in breath):
- Subsequent Offences:
- If the blood alcohol concentration is less than 0.15 grams:
- A fine of up to 180 penalty units or imprisonment for up to 12 months.
- If the blood alcohol concentration is 0.15 grams or more:
- A fine of up to 270 penalty units or imprisonment for up to 18 months.
- If the blood alcohol concentration is less than 0.15 grams:
Further, you risk your licence being disqualified for a minimum period of 12-60 months.
Where will my case be heard?
Driving Offences Involving Alcohol or other Drugs: Exceed Prescribed Concentration of an Illicit Drug and exceed PCA (Blood Analysis) within 3 hours of driving cases will be heard in the Magistrates Court.
Factors and Defences to Consider:
Defences:
- A defence against this charge can be established if the accused can prove that the analysis result was incorrect.
- Evidence regarding the effects of alcohol or drugs on you may be admissible to rebut certain presumptions related to the charges.
Record Keeping: Upon conviction, the court is required to enter the blood alcohol concentration levels into the court records, which include:
- The level of alcohol concentration found in the blood or breath.
- The concentration recorded by the breath analysing instrument.
- The concentration found in the blood sample.
Further factors and defences to consider:
- Did you drive or oversee a vehicle while under the influence of drug/s and alcohol?
- Had it been longer than three hours since you last drove a motor vehicle?
- Had you consumed any drugs in the time between driving and being tested?
- Had you consumed any alcohol in the time between driving and being tested?
- Was the drug considered illicit according to the law?
- Have the court accurately recorded your blood concentrations?
- Do you have previous convictions of a similar nature?
- What were the surrounding circumstances of this offence?
What happens next?
If you have 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? It’s crucial to act quickly and effectively to protect your legal rights and ensure the best possible outcome.
Now is the time to make sure that you have a lawyer who can give you sound advice, help you prepare your evidence, and discuss the key issues to be addressed in your matter. Preparation is essential to the success of any case, especially if your driver’s licence is important to your livelihood and daily life.
Importance of Legal Representation
Facing court without legal representation can put your rights at risk. A lawyer will not only help you understand the charges but also navigate the court process and build a strong case on your behalf. In cases where your licence is on the line, having professional guidance is especially important.
For example, under section 50AA of the Road Safety Act (RSA), if you have a conviction for a driving offence more than 10 years ago, it will not be counted as a prior offence for the purposes of disqualification. However, the Magistrate still has the discretion to disqualify you from driving for longer than the mandatory two-year minimum, even if there’s more than 10 years between offences.
Immediate Licence Suspension
If you’ve been charged with immediate licence suspension, the police may have already suspended your licence under section 85A. This suspension prevents you from driving until your case is determined in court. However, this suspension can be appealed, and a lawyer can assist you in making this application while awaiting your court date.
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What to Do Next?
If you have been charged with refusing to comply, don’t wait. Call MK Law today on 1800 130 120 to ensure you have the right legal support. We will guide you through the legal process, help you prepare your defence, and ensure that your rights are protected every step of the way. Our experienced team understands how vital your licence is, and we will work with you to achieve the best outcome possible.
Contact us now to get the legal advice and representation you need.
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