Offences under s 49 of the Road Safety Act 1986 are notorious for overlap.

Since before Mills v Meeking (1990) 169 CLR 214 it has been observed that the prosecution gets significant forensic advantage from charging the same act in several different ways. (And s 51 of the Interpretation of Legislation Act 1981 allows them to do it).

Drug-driving under ss 49(1)(a), (ba) and (bb), (h) and (i) is an example. It is possible for the same set of facts to comprise any, all or some of these offences, but the difference in penalties is significant.

Section 49(1) relevantly reads,

49 Offences involving alcohol or other drugs

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

(a) drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle; or

(b) … ; or

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

(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

(c) … ; or

(d) … ; or

(e) … ; or

(f) … ; or

(g) … ; 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, 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.

Section 49(1)(a)

Section 49(1)(a) is the most non-specific in its requirements. It hasn’t changed that much since its inclusion in the Motor Car Act 1909 (Vic). There are many ways for the prosecution to prove a s 49(1)(a) charge, when compared with more recent offences which require very specific methods of proof.

Paradoxically, it’s also the drug-driving offence with the most severe penalties. Section 49(2) provides that a person found guilty of this offence is liable to:-

• first offence = a fine up to 25 penalty units or to imprisonment up to 3 months;
• second offence = a fine up to 120 penalty units or to imprisonment up to 12 months;
• third offence = a fine up to 180 penalty units or to imprisonment up to 18 months.

According to s 50(1B), on a finding of guilt or conviction the court must also disqualify the driver’s licence for a minimum of:

(a) in the case of a first offence, 2 years; and
(b) in the case of a subsequent offence, 4 years.

If on a prosecution for this offence the court is not satisfied that the accused is guilty of a s 49(1)(a) offence but is satisfied that the accused is guilty of an offence under paragraph (ba), the court may find the accused guilty of anoffence under paragraph (ba) and punish the accused accordingly: s 49(8).

Section 49(1)(ba)

49(1)(ba) prohibits a driver being impaired, according to the meaning given in s 49(3A). This offence is linked to the drug impairment assessments described at s 55B (similar to field sobriety tests shown in American cop shows) and doesn’t seem to be charged very much. Section 49(3B) contains a defence that applies to this offence only, relating to the effect of prescription medications.The penalties provided at s 49(3) are as follows:

• first offence = a fine up to 12 penalty units;
• second offence = a fine up to 120 penalty units or to imprisonment up to 12 months;
• third offence = a fine up to 180 penalty units or to imprisonment up to 18 months.

Section 50(1C) requires a court, on a finding of guilt or conviction, to also disqualify the driver’s licence for a minimum of:

(a) in the case of a first offence, 12 months; and
(b) in the case of a subsequent offence, 2 years.

If on a prosecution for this offence the court is not satisfied that the accused is guilty of a s 49(1)(ba) offence but is satisfied that the accused is guilty of an offence under paragraph (bb), the court may find the accused guilty of anoffence under paragraph (bb) and punish the accused accordingly: s 49(9).

Section 49(1)(bb)

49(1)(bb) is an offence equivalent to s 49(1)(b), but in regard to drugs instead of alcohol. Offences of (bb) and (h) are frequently laid in the alternative. The penalties provided at s 49(3AAA) are as follows:

• first offence = a fine up to 12 penalty units;
• second offence = a fine up to 60 penalty units;
• third offence = a fine up to 120 penalty units.

Section 50(1E) requires a court, on a finding of guilt or conviction, to also disqualify the driver’s licence for a minimum of:

(a) in the case of a first offence, 3 months; and
(b) in the case of a subsequent offence, 6 months.

Section 49(1)(h)

49(1)(h) is the drug equivalent of s 49(1)(f), but the sample that is analysed is oral fluid rather than breath. Offences of (bb) and (h) are frequently laid in the alternative.It is a defence to a charge under this paragraph for the person charged to prove that the result of the analysis was not a correct result: s 49(5). Under s 48(1B) it must be presumed that a drug found by an analyst to be present in the sample of oral fluid was not due solely to the consumption or use of that drug after driving or being in charge of a motor vehicle unless the contrary is proved by the person charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.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: s 49(6A).The penalties provided at s 49(3AAA) are as follows:

• first offence = a fine up to 12 penalty units;
• second offence = a fine up to 60 penalty units;
• third offence = a fine up to 120 penalty units.

Section 50(1E) requires a court, on a finding of guilt or conviction, to also disqualify the driver’s licence for a minimum of:

(a) in the case of a first offence, 3 months; and
(b) in the case of a subsequent offence, 6 months.

Section 49(1)(i)

49(1)(i) is broadly similar to s 49(1)(g), where a blood sample has been taken for analysis. It is a defence to a charge under this paragraph for the person charged to prove that the result of the analysis was not a correct result: s 49(5). Under s 48(1B) it must be presumed that a drug found by an analyst to be present in the sample of blood was not due solely to the consumption or use of that drug after driving or being in charge of a motor vehicle unless the contrary is proved by the person charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.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: s 49(6A).Section 50(3AAA):

• first offence = a fine up to 12 penalty units;
• second offence = a fine up to 60 penalty units;
• third offence = a fine up to 120 penalty units.

Section 50(1E) requires a court, on a finding of guilt or conviction, to also disqualify the driver’s licence for a minimum of:

(a) in the case of a first offence, 3 months; and
(b) in the case of a subsequent offence, 6 months.

(The current value of a penalty unit can be found here.)

Calculating first offences

Section 48(2) provides that any offence under s 49 is treated as a previous offence when calculating subsequent offences:

(2) If a person who is convicted, or found guilty, of an offence against-

(a) any one of the paragraphs of section 49(1); or(b) section 56(2) as in force from time to time after the commencement of section 11 of the Road Safety (Drivers) Act 1991; or(c) section 56(7) as in force immediately prior to the commencement of section 11 of the Road Safety (Drivers) Act 1991-(the new offence) has at any time been convicted, or found guilty, of-(d) an offence, other than an accompanying driver offence, against the same or any other of those paragraphs or that section; or(e) an offence against any previous enactment corresponding to any of those paragraphs or that section or any corresponding law; or(f) an offence under section 318(1) of the Crimes Act 1958 (whether in relation to a motor vehicle or a vessel) where the culpable driving is constituted by behaviour referred to in paragraph (c) or (d) of section 318(2) of the Act-

(an old offence), the new offence is to be taken to be a subsequent offence for the purposes of this Act and, if relevant for those purposes, also to be a second offence if the person has only ever been convicted, or found guilty, of one old offence.

Interlocks

Drug-driving offences do not attract the alcohol interlock provisions at s 50AAA. (Very sensibly, since an interlock isn’t going to stop a drugged driver from driving). Further – and despite s 48(2) (referred to above) – s 50AAA(4) requires drug-driving offences be disregarded when calculating whether a drink-driver must have an interlock order made against their licence.

Impoundment

A second or subsequent offence against section 49(1)(bb), (h) or (i) is a Tier 1 offence.A link to the vehicle impoundment reckoner is here.