Have you been charged with Exceeding the Prescribed Concentration of Alcohol (Breath Analysis) within 3 Hours of Driving or being in Charge of a Motor Vehicle?
Section 49(1)(f), driving whilst exceeding the PCA within 3 hours of driving is a charge that is usually listed with section 49(1)(b). If the matter is proceeding as a plea of guilty, you should ever accept one of these charges. It is usually the case that the prosecution will proceed with the s49(1)(f) charge and withdraw the s49(1)(b) charge.
Like any drink driving matter there are a number of issues to consider if you have been charged with this offence.
- Primarily, there must be a consideration of whether the prosecution can make out their case?
- Did you drive a motor vehicle whilst being over the prescribed content of alcohol (being .05 in relation to open drivers)?
- Was the result due to alcohol consumed after driving?
- Do you have prior history for drink driving?
It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(f) to furnish a sample breath 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.
In order to make out an offence against s 49(1)(f) it must be shown that:
- you drove or were in charge of a motor vehicle;
- you were lawfully requested you undergo a preliminary breath test;
- you registered a positive reading on the preliminary breath test, or failed or refused to undergo the preliminary breath test;
- you were requested to provide a sample of breath or accompany the police to a place where a sample of breath could be provided;
- the analysis was conducted within three hours since you last drove;
- the results of the analysis indicated you met or exceeded the PCA (0.05 or above, 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 also satisfy other procedural requirements such as issuing you with a certificate showing the registered reading, and ensuring a prescribed breath analysing instrument was used.
Please read below for more information relating to this charge.
The offence
Section 49(1)(f) of the Road Safety Act 1986.
The prosecution must that:
- The defendant was driving or in charge of a motor vehicle within the 3 hours prior to providing a breath sample for analysis; and
- The defendant had a BAC concentration at or above the prescribed level;
- 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.
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 –
- For a first offence,
- a fine of 20 penalty units
- 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.
- 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)(f) for Exceeding PCA within 3 hours of driving, the court must cancel 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 but a magistrate can exceed this amount of time.
If found guilty of this offence 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 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?
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 what is to be addressed in this matter.
Preparation is critical to the success of any matter, ensure that you prepare appropriately by seeking quality legal advice. If you have been charged with a Driving Offences Involving Alcohol or other Drugs call our office on (03) 8644 7333 and make an appointment to see one of our lawyers today.
If you have been charged with exceeding the prescribed concentration of alcohol within 3 hours of driving in contravention of section 49(1)(f) 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.
For the purposes of disqualification, section 50AA of the RSA deems driving offences for which you were convicted over 10 years ago not to be a prior offence. However, it is still at a Magistrates’ discretion to disqualify you from driving for longer than the mandatory minimum.
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 Legislation
Section 49 Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she—
(f) within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55 and—
(i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath; and
(ii) the concentration of alcohol indicated by the analysis to be present in his or her breath 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.
(4) It is a defence to a charge under paragraph (f) of subsection (1) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated.
(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.
