Have you been charged with detection of a prescribed drug (oral sample) within 3 hours of driving or being in charge of a motor vehicle?
Dribbin & Brown Criminal Lawyers regularly represent clients charged with drug driving offences. We have offices all over Melbourne, in Geelong, Ballarat and Werribee and are specialist traffic offence lawyers.
We are familiar with the Courts, the court staff and prosecutors. This gives our firm a great advantage in relation to representing clients charged with driving offences.
There are a number of issues to consider if you have been charged with this offence.
- Did you drive with drugs in your system at or above the prescribed limit?
- Or were you in charge of a motor vehicle?
- How have the police particularised the charge, have they made a mistake?
- Do you have similar prior matters that will impact what will happen at court?
- Do you have a prescribed illicit substance in your system?
“Drugs”, the section refers are listed in section 3(1) of the RSA, being the illicit drugs:
- Methylamphetamine
- MDMA
- Cannabis
The “prescribed concentration of drugs” means any level of the drug present in the blood or fluid of that person (s 3(1)).
It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(h) to furnish an oral fluid sample that detects the presence of a prescribed illicit drug within 3 hours of driving or having been in control of a motor vehicle and the presence of the prescribed illicit drug was not due to consumption since having been driving. The sample will be provided in accordance with section 55E.
Section 55E of the RSA sets out the circumstances in which police may request that you undergo an oral fluid analysis. These include, but are not limited to:
- a positive preliminary oral fluid test;
- refusing or failing to undergo a preliminary oral fluid test;
- failing to undertake the test as directed;
- insufficient sample or machine malfunction.
In order to make out an offence against s 49(1)(h) it must be shown that:
- you were driving within three hours of a sample of oral fluid being taken;
- the sample taken by a person authorised to take it;
- a portion of the sample was delivered to you;
- the portion of the sample was analysed within 12 months of it being taken;
- the analysis was completed by a person trained and authorised to do so;
- it indicated the presence of a prescribed illicit drug in your system; and
- the presence of the illicit drug was not due to the consumption of the illicit drug after driving or being in charge of a motor vehicle.
There are further procedural requirements the police must follow, such as instructing you of the need to remain for three hours for testing, using the prescribed equipment operated by the authorised people, and instructing you how to undergo a preliminary or evidentiary sample for oral fluid.
Please read below for more information relating to this charge.
The offence
Section 49(1)(h) 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 an oral fluid sample for analysis; and
- The defendant returned a positive result for the presence of a prescribed illicit drug in the sample;
- The presence of the prescribed illicit drug at the time of testing was not due to the consumption of a drug after driving or being in charge of a motor vehicle.
Unlike alcohol, any trace of a prescribed illicit drug found in an oral fluid sample contravenes of s 49(1)(h).
Refusal to comply with a request for a preliminary oral sample or evidentiary sample of oral fluid may result in a person being charged with one of the refuse offences in ss 49(1)(ea) or (eb). These are worse charges and you should avoid this situation if you can as refusing to provide an oral sample, carry even more severe penalties and prolonged disqualification periods.
The penalty
If found guilty of returning a positive test for the presence of an illicit drug within three hours of driving the maximum penalties are –
- For a first offence, a fine of 12 penalty units.
- For a second offence a fine of 60 penalty units.
- For a third or subsequent offence a fine of 120 penalty units
Further, pursuant to section 50(1E), if a person is convicted or found guilty of an offence against section 49(1)(e) driving within three hours while a prescribed illicit drug in any concentration was present in your system, the court must suspend that person’s driver licence or learner permit, and disqualify them from driving for a minimum period of 3 months for a first offence and a minimum of 6 months 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.
Note that it is common for police to charge a person under section 49(1)(bb) for exceeding the prescribed concentration of drugs while driving along with a charge under s49(1)(h), these charges are alternative charges, on a plea of guilty only one charge should proceed, usually the s49(1)(h) as this is easier to prove.
Where will my case be heard?
Detection of a Prescribed Illicit Drug (Oral Sample) within 3 Hours of Driving or being in Charge of a Motor Vehicle 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 illicit drugs in the time between driving and being tested and not before driving?
- If you are pleading guilty, what can you do to minimise your sentence?
What to do next?
Preparation, preparation, preparation is the key to a good outcome. Any traffic solicitor assisting you with this type of offence, should obtain your police brief, consider the evidence and look for any technical defences and take full and proper instructions from you. This is the key to achieving a good outcome at court.
If you have been charged, consider what any extra time off the road will cost you.
The police and the courts take driving and drug 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 drug driving offences. If you have been charged, call our office today.
The Legislation
Section 49 Offences involving alcohol or other drugs
(This is an amended section 49(1) to incorporate only the subsections relevant to s49(1)(h) and s49(1)(bb)
(1) A person is guilty of an offence if he or she—
(bb) drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in his or her blood or oral fluid; or
(h) within 3 hours after driving or being in charge of a motor vehicle provides a sample of oral fluid in accordance with section 55E and—
(i) the sample has been analysed by a properly qualified analyst within the meaning of section 57B and the analyst has found that at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and
(ii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle; or
(i) 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 by a properly qualified analyst within the meaning of section 57 and the analyst has found that at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and
(ii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle; or
(3AAA) A person who is guilty of an offence under paragraph (bb), (eb), (h) or (i) 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 12 penalty units; and
(b) in the case of a second offence, to a fine of not more than 60 penalty units; and
(c) in the case of any other subsequent offence, to a fine of not more than 120 penalty units.
(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.
(6A) In any proceedings for an offence under paragraph (h), (i) or (j) of subsection (1) evidence as to the effect of the consumption or use of a drug on the accused is admissible for the purpose of rebutting the presumption created by section 48(1B) but is otherwise inadmissible.
(9) If on a prosecution for an offence under paragraph (ba) of subsection (1), the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence under paragraph (bb) of that subsection, the court may find the accused guilty of an offence under paragraph (bb) and punish the accused accordingly.
