Skip to content
  • +61 3 8644 7320
  • Email
  • Phone 7am to 12 Midnight - 7 days
  • Make a Booking
  • 中文
  • Locations
  • Contact
Search
Close this search box.
  • +61 3 8644 7320
  • Phone 7am to 12am - 7 days
  • 中文
Search
Close this search box.
  • 中文
Search
Close this search box.
  • +61 3 8644 7320
  • Phone 7am to Midnight - 7 days
Dribbin & Brown Criminal Lawyers
  • Legal Services
  • Our Lawyers
  • Criminal Defences
  • The System
  • Sentences
  • Blog
  • Locations
    • Ballarat
    • Broadmeadows
    • Dandenong
    • Frankston
    • Geelong
    • Melbourne CBD
    • Moorabbin
    • Ringwood
    • Werribee
  • Contact
Menu
  • Legal Services
  • Our Lawyers
  • Criminal Defences
  • The System
  • Sentences
  • Blog
  • Locations
    • Ballarat
    • Broadmeadows
    • Dandenong
    • Frankston
    • Geelong
    • Melbourne CBD
    • Moorabbin
    • Ringwood
    • Werribee
  • Contact

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

Home / Offences / Drug Driving / s49(1)(ba) Driving Whilst Impaired by a Drug

Contents of this page

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

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?

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

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.

The penalty

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.

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.

Drug Driving Charges

Road Safety Act 1986

Drug Driving Offences Melbourne (Article)

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

s49(1)(bb) Driving a Motor Vehicle with Prescribed Content of Drugs in system

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

s49(1)(ca) Refusing to Undergo Assessment for Drug Impairment? 

s49(1)(ea) Refusing to comply with Directions to Provide Additional Samples for Analysis? 

s49(1)(eb) Refusing to Undergo Oral Fluid Test? 

s49(1)(h) Detection of a Prescribed Illicit Drug (Oral Sample) within 3 Hours of Driving or being in Charge of a Motor Vehicle?

s49(1)(i) Exceeding the Prescribed Concentration of a Prescribed Illicit Drug (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

s84 Motor Vehicle Impoundment / Forfeiture by Police

s85 Appeal Immediate Licence Suspension

Related Offences

  • View Drink 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

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...
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!
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...
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...
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...
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...
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...
…
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...
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,...
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.

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

Dribbin & Brown Criminal Solicitors Melbourne

Facebook-f Twitter

© 2023 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
Eureka House
11 Lydiard Street South
Ballarat 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

Broadmeadows – 03 9116 9500
StartNorth at Townhall
12 Dimboola Rd
Broadmeadows VIC 3047

Dribbin & Brown

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

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
Eureka House
11 Lydiard Street South
Ballarat VIC, 3350

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

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

Broadmeadows – (03) 9116 9500
StartNorth at Townhall
12 Dimboola Rd
Broadmeadows VIC 3047

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

© 2023 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