Have you been charged with driving a motor vehicle whilst exceeding the prescribed concentration of drugs present in the body?
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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 driving a motor vehicle whilst exceeding the PCA of drugs present in the body?
Under Section 49(1)(bb) of the Road Safety Act (“RSA”), it is an offence for a person to drive or be in charge of a motor vehicle while having a prescribed concentration of drugs, or more, in their blood or oral fluid. This offence also includes situations where a sample of oral fluid or blood is taken within three hours of driving, and the presence of a prescribed illicit drug is detected in the sample.
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 the Prosecution Must Prove:
- You drove or were in charge of a motor vehicle
- A prescribed concentration of drugs was present
- Sample analysis within 3 hours
An oral fluid or blood sample was taken within 3 hours after driving, and a properly qualified analyst confirmed the presence of a prescribed illicit drug.
4.The drug was presence before or during driving.
The drug detected in the sample must have been present prior to, or during, the act of driving. It must not be the result of drug use after you had stopped driving.
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 driving a motor vehicle whilst exceeding the PCA of drugs in your body:
Under section 49(3AAA), the penalties for a conviction 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.
You will also likely loose your licence for a minimum of 3-6 months.
Where will my case be heard?
Ex PCA Drug driving charges will be heard will be heard in the Magistrates Court.
Factors and defences to consider:
- Were you driving with drugs in your system?
- Was the drug found in your system correctly identified as one of the prescribed drugs under the law?
- Had you taken this drug prior to or during the course of driving?
- Were you in control of a motor vehicle at the time?
- What were the specific circumstances surrounding the incident?
- Have you previously been charged with a similar offence?
- Did the police accurately draft the charge against you?
- Did the follow the correct procedures when obtaining the sample?
Additionally, under subsection (5), you may raise a defence by proving that the result of the drug analysis was incorrect.
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What to Do Next?
After being charged under Section 49(1)(bb) for driving a vehicle whilst exceeding the prescribed content of drugs in your system, 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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- 1800 130 120
- marcus@mklawfirm.com.au