Skip to content
  • +61 3 8644 7320
  • Email
  • Phone 7am to 12 Midnight - 7 days
  • Make a Booking
  • 中文
  • Locations
  • Contact
Search
Close
  • +61 3 8644 7320
  • Phone 7am to 12am - 7 days
  • 中文
Search
Close
  • 中文
Search
Close
  • +61 3 8644 7320
  • Phone 7am to Midnight - 7 days

Phone Appointments and Video Conferences Available

IMPORTANT COVID-19 COURT NEWS UPDATE

Dribbin & Brown Criminal Lawyers
  • Legal Services
  • Our Lawyers
  • Criminal Defences
  • The System
  • Sentences
  • Blog
  • Locations
  • Contact
Menu
  • Legal Services
  • Our Lawyers
  • Criminal Defences
  • The System
  • Sentences
  • Blog
  • Locations
  • Contact

s49(1)(g) Exceed the Prescribed Concentration of Alcohol (Blood Analysis) within 3 Hours of Driving or being in Charge of a Motor Vehicle? 

Have you been charged with Exceeding the Prescribed Concentration of Alcohol (Blood Analysis) within 3 Hours of Driving or being in Charge of a Motor Vehicle? 

This drink driving charge is less common, and usually results from a scenario where a driver has been hospitalised and a blood sample has been taken or in circumstances where the person has requested a blood sample be taken following a PBT, although police will usually proceed with the PBT reading in those circumstances.

Like all drink driving matters, there are many things to consider;

  • Did you drive or were you in control of a motor vehicle while under the influence of alcohol?
  • What was your blood alcohol concentration within 3 hours of driving or being in charge of a motor vehicle?
  • Was it at or above the limit?
  • Was the result due to alcohol consumed after driving?

It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(g) to furnish a sample of blood, taken in accordance with section 55, 55B, 55BA, 55E or 56, that detects the prescribed concentration of alcohol (PCA) or more than the prescribed concentration of alcohol within 3 hours of driving or having been in control of a motor vehicle if the alcohol present was not due to alcohol imbibed after driving or being in charge of a motor vehicle. The sample of blood must be analysed by a properly qualified person within 12 months after it was taken by a properly qualified person.

Under section 55 of the RSA the police can request a person submit to the collection of a blood sample for analysis if it appears that the person is unable to furnish the required sample of breath on medical grounds or due to a physical disability or if the instrument used to analyse breath is incapable of measuring the concentration of alcohol present for any reason. The police can require that a person accompany them to a place where the sample can be taken and remain there until it is taken or until 3 hours has lapsed since they were a driver or occupant in a motor vehicle. A person who does as requested in these circumstances will not be charged with any refusal offence.

Section 55B states that if a person undergoes an assessment for drug impairment and in the opinion of the officer carrying out the assessment it indicates that person is impaired by a drug, they may require the person to furnish a sample of blood for analysis.

Section 55BA relates to incidents when a person has been the driver or passenger in a motor vehicle involved in an accident that resulted in death or serious injury. The section applies if the police reasonably believe a person has been involved in such an accident, the police can direct that that person has a sample of blood taken by an approved person for analysis. The person may be required to accompany the police to a facility where the procedure can occur or it may occur during hospital treatment.

Pursuant to section 56 of the RSA blood samples are to be taken in certain circumstances. If a person of or over the age of 15 years enters or is brought to a place for examination or treatment in consequence of an accident (whether within Victoria or not) involving a motor vehicle, the person must allow a doctor or approved health professional to take from that person at that place a sample of that person’s blood for analysis. A person must not hinder this process. And a person who is unconscious or unable to communicate is assumed to allow the taking of the sample.

In order to make out an offence against s 49(1)(g) it must be shown that:

  • a person drove or were in charge of a motor vehicle;
  • that person was lawfully requested to provide a sample of blood for analysis for alcohol concentration in accordance with one of the sections of the RSA mentioned in the above paragraph;
  • the person consented to the collection of the sample for analysis;
  • the sample collected within three hours since the person last drove;
  • the blood sample was taken in accordance with proper procedure and by a person authorised to take the sample;
  • the analysis was undertaken within 12 months of the sample being collected;
  • the results of the analysis indicated the person tested met or exceeded the PCA (0.05 or above for open drivers, or above 0.00 if a learner or probationary driver); and
  • the reading was not due solely to alcohol consumed after driving or being in charge of a motor vehicle.

The police must satisfy procedural requirements such as the police advising the person of their obligation to remain in place for up to 3 three hours, using the prescribed equipment operated by the authorised people, and providing clear instructions.

If a person does not comply with a request to provide a sample of blood, they can be charged under sections 49(1)(d), (e) or (ea) for refusing the requirement. These charges often carry much more severe penalties.

Please read below for more information relating to this charge.

The offence

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

The prosecution must show that:

  1. The defendant was driving or in charge of a motor vehicle within the 3 hours prior to providing a blood sample for analysis; and
  2. The sample was taken in accordance with sections 55, 55B, 55BA, 55E or 56; and
  3. The defendant had a prescribed concentration of alcohol at or above the prescribed level in the blood sample; and
  4. The concentration at the time of testing was not due solely to t the consumption of alcohol after driving or being in charge of a motor vehicle.

The definition of “prescribed concentration of alcohol” is found in s 3(1) RSA.

Please read below for more information relating to this charge.

The penalty

If found guilty of an Offence Involving Alcohol or Other Drugs: exceeding the PCA within three hours of driving the maximum penalties are –

  1. For a first offence, a fine of 20 penalty units.
  2. For a second offence:
    • Where BAC is less than 0.15 a fine of 60 penalty units or a term of imprisonment of 6 months.
    • Where BAC is 0.15 or more a fine of 120 penalty units and imprisonment for a term of 12 months.
  3. For a third or subsequent offence:
    • Where BAC is less than 0.15: a fine of 120 penalty units and imprisonment for a term of 12 months.
    • Where BAC is 0.15 or more a fine of 180 penalty units and imprisonment for a term of 18 months.

Further, pursuant to section 50(1A), if a person is convicted or found guilty of an offence against section 49(1)(g) for exceeding PCA (blood analysis) within 3 hours of driving, the court must suspend that person’s driver licence or learner permit, and disqualify them from driving for a minimum period as set in Schedule 1 of the RSA. Schedule 1 outlines the disqualification periods for exceeding the PCA within 3 hours of driving on a first or subsequent offence. The periods are between 3 – 48 months.

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 Offences Involving Alcohol or other Drugs: Exceed PCA within 3 hours of driving (blood analysis) cases will be heard will be heard in the Magistrates Court.

Questions to consider

Do you have a defence?

Had it been longer than three hours since you last drove a motor vehicle?

Had you consumed alcohol in the time between driving and being tested?

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

What to do next?

If you have been charged with exceeding the prescribed concentration of alcohol within 3 hours of driving (blood analysis) in contravention of section 49(1)(g) of the RSA and 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 months or 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 along with fines and license disqualification.

If you have been charged with an offence under 49(1)(g) a police officer may suspend your licence immediately, as per section 85 of the RSA. 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.

Magistrates’ take drink driving very serious so you should engage solicitors that appear in traffic offence matters regularly; Dribbin & Brown Lawyers are experienced in handling these types of matters. We regularly appear in court to represent people charged with driving offences. If you have been charges, call our office today.

The Legislation

Section 49 Offences involving alcohol or other drugs

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

(g) has had a sample of blood taken from him or her in accordance with section 55, 55B, 55BA, 55E or 56 within 3 hours after driving or being in charge of a motor             vehicle and—

(i) the sample has been analysed within 12 months after it was taken by a properly qualified analyst within the meaning of section 57 and the analyst has found that at the time of analysis the prescribed concentration of alcohol or more than the prescribed concentration of alcohol was present in that sample; and

(ii) the concentration of alcohol found by the analyst to be present in that sample was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle; or

(2A) A person who is guilty of an offence under paragraph (b), (f) or (g) 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 20 penalty units; and

(b) in the case of a second offence—

(i) to a fine of not more than 60 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 120 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 120 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 180 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.

(5) It is a defence to a charge under paragraph (g), (h), (i) or (j) of subsection (1) for the person charged to prove that the result of the analysis was not a correct result.

(6) In any proceedings for an offence under paragraph (f), (g) or (j) of subsection (1) evidence as to the effect of the consumption of alcohol on the accused is admissible for the purpose of rebutting the presumption created by section 48(1A) but is otherwise inadmissible.

(7) On convicting a person, or finding a person guilty, of an offence under subsection (1) the court must cause to be entered in the records of the court—

(a) in the case of an offence under paragraph (b) of subsection (1), the level of concentration of alcohol found to be present in that person’s blood or breath; and

(b) in the case of an offence under paragraph (f) of subsection (1), the level of concentration of alcohol found to be recorded or shown by the breath analysing instrument; and

(c)  in the case of an offence under paragraph (g) or (j) of subsection (1), the level of concentration of alcohol found to be present in the sample of blood.

Drink Driving Charges

Road Safety Act 1986

s49(1)(a) DUI (Driving Under the Influence)

s49(1)(b) Exceed the Prescribed Concentration of Alcohol (PCA)

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

s49(1)(c) Refusing to Undergo a Preliminary Breath Test

s49(1)(d)Refuse or Fail to Comply with a Request or Signal to Stop

s49(1)(e) Refusing to comply with Directions made by Police to Regarding Breath Analysis

s49(1)(f) Exceeding the PCA within 3 Hours of Driving or being in Charge of a Motor Vehicle

s49(1)(g) Exceed the Prescribed Concentration of Alcohol (Blood Analysis) within 3 Hours of Driving or being in Charge of a Motor Vehicle? 

s49(1)(j) ExPCA (Blood Analysis) of alcohol and drugs within 3 Hours of Driving of being in Charge of a Motor Vehicle

s49B Consume Intoxicating Liquor While Driving

s49C Consuming Intoxicating Liquor While Supervising a Learner Driver

s84 Motor Vehicle Impoundment / Forfeiture by Police

s85 Appeal Immediate Licence Suspension

Related Offences

  • View Drug Driving Offences
  • View Driving Offences

Case Studies

Application for rehearing

Dangerous Driving

Drink & Drug Driving Charges

Drink Driving Charges Ringwood Magistrates Court

Drink Driving Offences – Penalties

Driving Charges Without Conviction

Driving Offences – Careless Driving

Driving Offences – Driving Whilst Suspended

Driving Whilst Suspended – Frankston

Impoundment Exceptional Hardship

Licence Restoration

Reckless Conduct Endanger Serious Injury

Our Legal Services

Appeals

Assault Offences

Asset Confiscation

Bail Application

Breach Offences

Centrelink Fraud

Children’s Court

Computer Offences

Council Charges

Drink Driving

Driving Offences

Drug Offences

Family Violence

Firearm Offences

Fraud Offences

Infringement Warrants

Intervention Orders

Murder Trials

Perjury Charges

Pervert the Course of Justice

Royal Commission

RSPCA Offences

Sex Offences

Theft

Traffic Offences

Violence

Weapons

White Collar Crime

  • Law Institute Accredited Specialist Criminal Lawyers
  • Legal Aid enquiries welcome
  • Over 100 years firm experience practising as traffic lawyers and criminal defence lawyers
specialist criminal solicitor warning
Do not ask any firm to act on your behalf in relation to a criminal or traffic law offence unless they specialise in criminal or traffic law.
  • Law Institute Accredited Specialist Criminal Lawyers
  • Legal Aid enquiries welcome
  • Over 100 years firm experience practising as traffic lawyers and criminal defence lawyers
specialist criminal solicitor warning
Do not ask any firm to act on your behalf in relation to a criminal or traffic law offence unless they specialise in criminal or traffic law.

What Our Clients Say

Yvonne and Peter Braithwaite
Thanks for your excellent work for Yvonne last Friday. Your courtesy, empathy and professionalism was greatly appreciated. All the best for the future.
Russell P
Dear David and Team I would like to “Thank You” for a job well done. The result, from the trial was truly amazing. I very much appreciated your courtesy, professionalism...
Michael S
Dear Rebeca, Thank you again for your support and guidance over the past six months, it is my belief that Dribbin and Brown went far beyond there charter when...
Helen and Lingbo Yang
Thank you for your support and help of Lingbo’s case for these days and everything is going smoothly. The outcome is better than we expected because of your rich...
Grant B
I phoned Michael Brown of Dribbin and Brown after total disappointment in another criminal lawyer firm... In my situation that required communication, information and a great deal of understanding,...
Adrian W
A big thank you Dave. You made it seamless. You are a quality egg and hopefully I'll see you again under different circumstances. All the best!
Ross M
Dear Dave, Just a follow up thanks for your professional service & presentation yesterday – very happy with the outcome and the comments from the Magistrate. Thanks again, and...
…
Mike! Jacqui was great! Re my drive whist suspended charge, I held my license with a small fine to be payed in 4 months! Can't thank you enough! Thanks for...
Haley M
We cannot thank you enough, it still doesn't feel real to us yet as it has caused a lot of strain and stress over a very long period of...
Maria
Many thanks for the wonderful support I received from David Dribbin as he represented me in court today. It was an extremely emotional experience for me and without judgement...
Sam B
Thank you for your outstanding service.... A great result for us...

Need help? Call our 7am to Midnight Phone Service on +61 (03) 8644 7320

Dribbin & Brown Criminal Solicitors Melbourne

Facebook-f Twitter

© 2021 Dribbin & Brown

Melbourne – 03 8644 7320
13/200 Queen St
Melbourne Vic 3000

Frankston – 03 8644 7322
8/395-399 Nepean Hwy
Frankston VIC, 3199

Ballarat – 03 8644 7310
Armstrong House
17 Armstrong Street South
Ballarat Central VIC, 3350

Dandenong – 03 8644 7315
1a/147 Foster St
Dandenong, VIC, 3175

Moorabbin – 03 8644 7328
Level 1, 441 South Rd
Moorabbin, Vic, 3189

Geelong – 03 8644 7300
2/13 Fenwick Street
Geelong Vic 3220

Ringwood – 03 8644 7325
7/2 Nelson St
Ringwood VIC 3134

Werribee – (03) 9116 9595
9/7 Bridge Street
Werribee VIC 3030

Dribbin & Brown

  • About Us
  • What We Do
  • The System
  • Criminal Defences
  • Sentences
  • Criminal Lawyers Blog
  • Client Testimonials

Melbourne – 03 8644 7320
13/200 Queen St
Melbourne Vic 3000

Frankston – 03 8644 7322
8/395-399 Nepean Hwy
Frankston VIC, 3199

Ballarat – 03 8644 7310
Armstrong House
17 Armstrong Street South
Ballarat Central VIC, 3350

Dandenong – 03 8644 7315
1a/147 Foster St
Dandenong, VIC, 3175

Moorabbin – 03 8644 7328
Level 1, 441 South Rd
Moorabbin, Vic, 3189

Geelong – 03 8644 7300
2/13 Fenwick Street
Geelong Vic 3220

Ringwood – 03 8644 7325
7/2 Nelson St
Ringwood VIC 3134

Werribee – (03) 9116 9595
9/7 Bridge Street
Werribee VIC 3030

© 2021 Dribbin & Brown

Facebook-f Twitter

Dribbin & Brown

  • About Us
  • What We Do
  • The System
  • Criminal Defences
  • Sentences
  • Criminal Lawyers Blog
  • Client Testimonials

7am to Midnight Phone Service: +61 (03) 8644 7320  Contact Us | Book An Appointment

Privacy Policy | Disclaimer | Traffic Lawyers Melbourne

7am to 12am Phone Service: +61 (03) 8644 7320
Contact Us | Book An Appointment
Privacy Policy | Disclaimer | Traffic Lawyers Melbourne