Have you been Charged with 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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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 detection or exceeding a prescribed concentration of drug/s within three hours of driving or being in charge of a motor vehicle?
Under Section 49(1(h)) of the Road Safety Act(“RSA”), a person commits an offence if they:
- (h) Within three hours of driving or being in charge of a vehicle, provide a sample of oral fluid that:
- Has been tested by a qualified analyst, and the analyst found a prescribed illicit drug in the sample at any concentration.
- The presence of that drug was not solely due to consuming it after driving.
- (i) Have a blood sample taken within three hours after driving or being in charge of a vehicle that:
- Has been tested by a qualified analyst, and the analyst found a prescribed illicit drug in the sample at any concentration.
- The presence of that drug was not solely due to consuming it after driving.
It is important to note that police often charge individuals under section 49(1)(bb) for exceeding the prescribed concentration of drugs while driving, in addition to a charge under section 49(1)(h). These charges are considered alternative charges, meaning that if you plead guilty, only one charge will typically proceed—usually the one under section 49(1)(h), as it is generally easier to prove.
What the Prosecution Must Prove for Detection or Exceeding a Prescribed concentration of Drug/s within 3 Hours of Driving?
To convict a person under this charge, s49(1), the prosecution must establish the following:
- Oral Fluid Sample: For paragraph (h):
- The prosecution must show that a sample of oral fluid was taken from you within three hours of you driving or being in charge of a vehicle.
- The sample must have been analysed by a qualified analyst, confirming the presence of a prohibited drug at any concentration.
- The prosecution must prove that the drug’s presence was not solely due to consumption after driving.
- Blood Sample: For paragraph (i):
- The prosecution must demonstrate that a blood sample was taken from you within three hours after you drove or were in charge of a vehicle.
- The sample must have been analysed by a qualified analyst, confirming the presence of a prohibited drug at any concentration.
- Similarly, the prosecution must show that the drug’s presence was not solely due to consumption after driving.
What are considered Illicit Drugs?
The relevant drugs for this section are defined at section 3(1) of the RSA, being the following “illicit drugs”:
- Methylamphetamine
- MDMA
- Cannabis
What does prescribed concentration of drugs mean?
The “prescribed concentration of drugs” refers to any amount of the drug detected in a person’s blood or oral fluid (s 3(1)). This means that even if someone used a drug like cannabis the day before, it could still appear in an oral fluid test.
The police only need to prove that one of the three listed drugs is present in the driver’s blood or oral fluid. They do not need to prove that the drug affected the driver’s ability to control the vehicle.
If you test positive in a roadside oral test, you will be asked to provide another sample (oral, blood, or urine) for formal testing. The police must follow specific procedures when taking these samples. If you believe they did not, it is important to consult a criminal lawyer at MK Law immediately.
If the second test confirms the presence of a prescribed concentration of drugs, you will likely be charged and required to appear in court. While you are not obligated to cooperate with the police, refusing to provide a sample can lead to more serious charges and longer disqualification periods.
Penalties for the Detection or exceeding?
If found guilty under paragraphs (h), or (i), the penalties are as follows:
- First Offence: A fine of up to 12 penalty units.
- Second Offence: A fine of up to 60 penalty units.
- Subsequent Offences: A fine of up to 120 penalty units.
These penalties apply to offences related to the presence of drugs while driving or being in charge of a vehicle and may differ from other related offences.
Further, you risk having your license disqualified for a minimum of 3-6 months for a charge of detection, and 6-12 months for a charge of exceeding.
If you are found to be driving under the influence of alcohol or other drugs, you may be required to participate in a behavioural change program as determined by VicRoads.
Where will my case be heard?
Detection of a prescribed Illicit drug (oral sample) or exceeding the prescribed illicit drug (blood sample) within 3 Hours of Driving or being in Charge of a Motor Vehicle will be heard will be heard in the Magistrates Court.
Factors and defences to consider:
- Were you driving with drugs in your system at or above the prescribed limit?
- Were the drug/s considered illicit according to law?
- Were you driving within the three hours of a sample being taken?
- Were you charged under section 49(1)(h) or (i)?
- Was it an oral fluid sample or blood sample you provided?
- Did police follow the correct procedure?
- Do you have ay previous convictions of a similar nature?
- What were the surrounding circumstances of your offence?
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What to Do Next:
After being charged under Section 49(1)(h) or (i), the next steps involve several key actions.
First, seek legal representation from a lawyer at MK Law who specialises in traffic law and criminal law, who will provide advice, review evidence, and represent you in court. You will attend court proceedings where you must decide whether to plead guilty or contest the charges. If you contest, your lawyer will gather and challenge evidence, such as the accuracy of the breath analysis and police procedures. If found guilty, the court will impose penalties, which can include fines, imprisonment, and a driver’s licence disqualification.
You may also be required to participate in a behavioural change program. Post-trial, you can explore options for appeal if you are dissatisfied with the verdict, and once the disqualification period ends, you may need to apply for licence reinstatement. Ensuring compliance with court orders and rehabilitation requirements is crucial for mitigating the long-term impact of the offence. Call 1800 130 120 to seek advice and representation to achieve the best possible outcome for your circumstances.
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