s49(1)(bc) Drive with Prescribed Concentration of Drug and Alcohol

Have you been charged with driving over the Prescribed Concentration of Drug & Alcohol?

This charge relates to drink driving and drug driving combined. Sometimes police will charge both the drink driving charge and the drug driving charge as two separate charges. This can sometimes work out better for our clients in the short term, as on a plea of guilty to both, it can lead to a reduced mandatory period of disqualification because the disqualification period’s will run concurrent. But this can be a gamble as there is no guarantee that the magistrate will impose the minimum time in respect of each offence. The other factor to consider here is that, two charges will amount to two prior matters if any future relevant offending is detected and will have ramifications later in relation to the applicable maximum penalty. More often than not, police will charge the correct charge being the one combined charge of drink and drug driving which makes the above considerations irrelevant.

There are a number of issues to consider if you have been charged with the singular offence.

• How have the police laid the charges, is it the combined charge or separate charges?
• Were you in charge of a motor vehicle?
• What were the circumstances?
• Have you been charged for similar offence in the past?

It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(bc) to drive or be in control of a motor vehicle with the prescribed concentration of a drug and alcohol present in breath, blood or oral fluid. The provision relating to driving while exceeding the prescribed concentration of drugs and alcohol is a combination of sections 49(1)(b) and 49(1)(bb).

The “prescribed concentration of alcohol” (PCA) is 0.05 (see section 3(1)). The mandatory disqualification periods become longer as the concentration becomes greater than 0.10; and increase again for subsequent offending. The “prescribed concentration of drugs” is any amount of illicit drug including methylamphetamine, MDMA or cannabis detected in the blood or oral fluid of a driver.

Please read below for more information relating to this charge.

The offence of Drink & Drug Driving

 Section 49(1)(bc) of the Road Safety Act 1986.

The prosecution must that:

1. The defendant was driving or in charge of a motor vehicle: and
2. The defendant had the prescribed concentration, or more than the prescribed concentration of alcohol is present in his or her blood or breath; and
3. The defendant had the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in their blood or oral fluid.

The penalty

If found guilty of an Offence Involving Alcohol or Other Drugs: Drive with Prescribed Concentration of Drug or Alcohol the maximum penalties are –

1. For a first offence, a fine of 30 penalty units.
2. For a second offence, a fine of 90 penalty units or imprisonment for a term of 6 months where concentration is less than 0.15. Where concentration is or exceeds 0.15 a fine of 180 penalty units or imprisonment for a term of 12 months.
3. For a third or subsequent offence, a fine of 180 penalty units or imprisonment for a term of 12 months where concentration is less than 0.15. Where concentration is or exceeds 0.15 a fine of 270 penalty units or 18 months gaol.

Further, pursuant to section 50(1AD) of the RSA, if a person is convicted or found guilty of an offence against section 49(1)(bc) driving with the prescribed concentration of drugs or alcohol, the court must cancel your driving licence or learner permit, and disqualify you from driving for a minimum period set out in Schedule 1AB of the Road Safety Act (RSA). The period will established on the concentration of alcohol in blood in grams per 100 millilitres of blood or in breath in grams per 210 litres of exhaled air.

The court must cancel that person’s driver licence or learner permit, and disqualify them from driving for a minimum period of:

• 12-30 months, dependant on BAC, for a first offence.
• 24-60 months, dependant on BAC, for any subsequent offence.

If found to be driving under the influence of alcohol or other drugs you may be required to undergo a behavioural change program. Participation in these programs in determined by VicRoads.

Where will my case be heard?

Driving with the Prescribed Concentration of Drugs or Alcohol cases will be heard will be heard in the Magistrates Court.

Questions to consider

Do you have a defence?

If you are pleading guilty, what can you do to minimise your sentence?

What to do next?

Preparation is always important to the success of any matter. If you have been charged with a Driving Offences Involving Alcohol or other Drugs it is important that you book in to see one of our specialist traffic offence lawyers.

If your driver’s licence is important to you, don’t go to court unrepresented. Consider how much it will cost you to be disqualified from driving for 1-2 years. If you have previously committed an offence of driving under the influence of drugs or alcohol the penalties will be more severe, you may receive a term of imprisonment.

For the purposes of disqualification, section 50AA of the RSA means any prior offence recorded within 10 years will be relevant to the period of disqualification that you receive.  That said, it is still at a Magistrates’ discretion to disqualify you from driving for longer than the mandatory period even were there is more than 10 years between offences.

If you have been charged with drive with prescribed concentration of drug and alcohol, the police may also immediately suspend your licence pursuant to section 85. This would mean you cannot drive until your matter has been determined at court, but this suspension can be appealed while awaiting the court hearing for the alleged offence.

The police and the courts take driving offences very seriously to avoid severe penalties you need to be represented; Dribbin & Brown Lawyers are experienced in handling these types of matters. We regularly appear in court to represent people charged with driving offences.

The reduced Legislation s49(1)(bc)

Section 49 Offences involving alcohol or other drugs

(1) A person is guilty of an offence if he or she—

(bc) drives a motor vehicle or is in charge of a motor vehicle while both—

(i) the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath; and

(ii) the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in his or her blood or oral fluid; or

(3AAB) A person who is guilty of an offence under paragraph (bc) or (j) of subsection (1), other than a supervising driver offence, is liable—

(a) in the case of a first offence, to a fine of not more than 30 penalty units; and

(b) in the case of a second offence—

(i) to a fine of not more than 90 penalty units or to imprisonment for a term of  not more than 6 months if the concentration of alcohol—

(A) in the person’s blood was less than 0·15 grams per 100 millilitres of blood; or

(B) in the person’s breath was less than 0·15 grams per 210 litres of exhaled air—

as the case requires; or

(ii) to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 12 months if the concentration of alcohol—

(A) in the person’s blood was 0·15 grams or more per 100 millilitres of blood; or

(B) in the person’s breath was 0·15 grams or more per 210 litres of exhaled air—

as the case requires; and

(c) in the case of any other subsequent offence—

(i) to a fine of not more than 180 penalty units or imprisonment for a term of not more than 12 months if the concentration of alcohol—

(A) in the person’s blood was less than 0·15 grams per 100 millilitres of blood; or

(B) in the person’s breath was less than 0·15 grams per 210 litres of exhaled air—

as the case requires; or

(ii) to a fine of not more than 270 penalty units or to imprisonment for a term of not more than 18 months if the concentration of alcohol—

(A) in the person’s blood was 0·15 grams or more per 100 millilitres of blood; or

(B) in the person’s breath was 0·15 grams or more per 210 litres of exhaled air—

as the case requires.

(3AA) A person who is guilty of a supervising driver offence is liable to a fine of not more than 5 penalty units.