s49(1)(ba) Driving Whilst Impaired by a Drug

Have you been charged with Driving While Impaired by a Drug? 

This charge is more serious offence than driving with a prescribed content of drug in your system. In relation to that charge the police only have to establish that the drug is an illicit drug and that it was in your system at the time of driving or being in control of a motor vehicle. 

In relation to an impairment charge police must establish that you are impaired by a drug. To do this there are certain procedural requirements. If you are facing this charge it is important to engage a drug driving lawyer that understands these types of offences. 

There are a number of issues to consider if you have been charged with this offence:

• Can the prosecution make out their case?
• Were you impaired?
• Have police video recorded the impairment assessment?
• Do you have any relevant prior matters?
• What drug was in your system?

It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(ba) to drive a motor vehicle or be in charge of a motor vehicle while impaired by any drug.

If you are reasonably suspected by a police officer to be driving or in control of a motor vehicle while impaired by a drug (i.e. a police officer thinks you are unable to drive properly because you are impaired by a drug: s 48(1AD)), you may be required to undergo a drug assessment and could be charged.

The list of drugs applicable to s 49(1)(ba) is extensive, and is not limited to illicit drugs. It may include prescription or non-prescription medication which could impair your driving or ability to control a motor vehicle. This is an important distinction.

If on an analysis no drug, other than a permissible non‑prescription drug or a prescription drug, was found present in the person’s body, the alleged offender may have a defence because they did not know and could not reasonably have known that the permissible non-prescription drug or the prescription drug, or the combination of drugs, could impair driving if consumed or used in accordance with advice given to them by a registered medical practitioner.

Please read below for more information relating to this charge.

The offence of driving while impaired:

Section 49(1)(ba) 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 was impaired by a drug or a drug and alcohol.

The penalty for driving while impaired?

If found guilty of an Offence Involving Alcohol or Other Drugs: Driving While Impaired by a Drug the maximum penalties are –

1. For a first offence, a fine of 12 penalty units.
2. For a second offence, a fine of 120 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 18 months.

Mandatory Licence Loss for Driving While Impaired

Further, pursuant to section 50(1C), if a person is convicted or found guilty of an offence against section 49(1)(ba) for Driving While Impaired by a Drug, the court must cancel that person’s drivers licence or learners permit, and disqualify them from driving for a minimum period of:

• 2 years for a first offence.
• 4 years for any subsequent offence.

If found guilty of this charge 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 While Impaired by a Drug case 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?
• Was the drug a prescription drug or permissible non-prescription drug?
• Did you take it as directed by a healthcare professional?
• Was it prescription medication and were you aware it could impair your ability to drive?

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 important to the success of any matter. If you have been charged with a driving or being control of a motor vehicle while impaired by a drug and your driver’s licence is important to you, don’t go to court unrepresented.

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 2 year minimum even were there is more than 10 years between offences.

If you have been charged with driving while impaired by a drug, the police may also immediately suspend your licence pursuant to s 85A. 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.

If you have been charged, you should call our office today.

The Legislation:

(Amended to only include the relevant subsections under s49 of the RSA relevant to s49(1)(ba))

Section 49 Offences involving alcohol or other drugs

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

(ba) drives a motor vehicle or is in charge of a motor vehicle while impaired by a drug; or

(3) A person who is guilty of an offence under paragraph (ba), (c), (ca), (d), (e) or (ea) 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 120 penalty units or to imprisonment for a term of not more than 12 months; and

(c) in the case of any other subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.

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

(3A) In proceedings for an offence under paragraph (ba) of subsection (1), proof that—

(a) the person drove or was in charge of a motor vehicle; and

(b) one or more drugs were present in the person’s body at the time at which he or she drove or was in charge of the motor vehicle; and

(c) the behaviour of the person on an assessment of drug impairment carried out under section 55A was consistent with the behaviour usually associated with a person who has consumed or used that drug or those drugs; and

(d) the behaviour usually associated with a person who has consumed or used that drug or those drugs would result in the person being unable to drive properly—

is, in the absence of evidence to the contrary but subject to subsections (3B) and (3C), proof that the accused drove or was in charge of a motor vehicle while impaired by a drug.

(3B) If on an analysis carried out in accordance with this Part, no drug other than a permissible non‑prescription drug or a prescription drug was found present in the person’s body, it is a defence to a charge under paragraph (ba) of subsection (1) for the person charged to prove that—

(a) he or she did not know and could not reasonably have known that the permissible non-prescription drug or the prescription drug, or the combination of those drugs, so     found would impair driving if consumed or used in accordance with advice given to him or her by a registered medical practitioner, a dentist or a pharmacist in relation to the drug or combination of drugs; and

(b) he or she consumed or used that drug or combination of drugs in accordance with that advice.

(8) If on a prosecution for an offence under paragraph (a) 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 (ba) of that subsection, the court may find the accused guilty of an offence under paragraph (ba) and punish the accused accordingly.

(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.