Alcohol/ Drugs and Driving Offences

The Road Traffic Act 1961 creates three major offences involving the combination of driving and drugs or alcohol. These are commonly known as:

  • DUI (driving under the influence of alcohol or drugs);
  • PCA (driving with a prescribed concentration of alcohol); and
  • refusing to blow (refusing to comply with directions in relation to a breath test).

Alcohol and drug testing

A police officer can require a person to take a breath test in a number of circumstances including where that person was involved in an accident, has committed a driving offence, or where the person’s manner of driving shows that they may be affected by alcohol.

A police officer may also require the driver of any motor vehicle that approaches a random breath testing station to submit to an alcotest, which is a small hand held unit that drivers blow into, usually without leaving their vehicles. Alcotest units must comply with the requirements of the Road Traffic Act 1961 [see s 47H].

The police have a broad power to require a person to submit to an alcotest or breath analysis, or both. A police officer can require a person to submit to an alcotest where that police officer believes on reasonable grounds that a person is driving, or has driven a motor vehicle; is attempting, or has attempted to put a motor vehicle in motion; or is acting, or has acted as a qualified supervising driver for the holder of a permit or licence [see Road Traffic Act 1961s 47E(1)]. In addition, a police officer can randomly direct a person driving a vehicle to stop the vehicle and submit to an alcotest or breath analysis [see ss 47E(2); s 47EA for exercise of random testing powers]. A person may not, in the exercise by police of random testing powers, be required to submit to a breath analysis unless an alcotest indicates that the prescribed concentration of alcohol may be present in the blood of the person [see s 47E(2ab)]. An alcotest or breath analysis may not be commenced more than eight hours after the conduct of the person which gave rise to the requirement [see s 47E(2b)].

When an alcotest shows that the prescribed concentration of alcohol may be present in the blood of a driver, the driver can be required to submit to a breath analysis. If the breath analysis indicates the prescribed concentration of alcohol, the police officer who conducted the test must tell the driver of their right to have a blood test taken and that, if a blood test is not taken, the result of the breath test cannot be challenged in court [see Road Traffic Act 1961 s 47K(2a)(a); Road Traffic (Miscellaneous) Regulations 2014 regs 21 and 22]. Furthermore, a police officer may request further testing by way of a drug screening test, an oral fluid analysis, or a blood test in certain circumstances [see Road Traffic Act 1961 s 47EAA for further information].

Driving under the influence of alcohol (DUI)

It is an offence to drive a vehicle, or attempt to put a motor vehicle in motion, while so much under the influence of intoxicating liquor (or a drug) as to be incapable of exercising effective control of the vehicle [see Road Traffic Act 1961 s 47; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 r 4(b)].

First Offence: a fine of not less than $1100 and not more than $1600, or imprisonment for not more than three months, and a mandatory licence disqualification for not less than twelve months [see Road Traffic Act 1961 ss 47(1)(a) and 47(3)(a)(i)].

Subsequent Offence: a fine of not less than $1900 and not more than $2900, or imprisonment for not more than six months, and a mandatory licence disqualification for not less than three years [see ss 47(1)(b) and 47(3)(a)(ii)].

In the case of a first offence, where the Court is satisfied by evidence given on oath that the offence is trifling the court may order a lesser period of disqualification but for not less than one month [see s 47(3)(b)]

For the purposes of this offence, a person is deemed to be incapable of exercising effective control of a vehicle if any physical or mental faculty is lost or appreciably impaired [see s 47(2)]. It is therefore possible to be convicted of driving under the influence of alcohol even if the blood alcohol level is less than the prescribed concentration. In attempting to prove charges of driving under the influence, prosecution submit evidence of the manner in which the vehicle was being driven and any signs of intoxication, for example the smell of alcohol about the driver, unsteadiness, watery or bloodshot eyes, and slow or slurred speech.

Prescribed concentration of alcohol (PCA)

It is an offence for a person to drive a motor vehicle, or attempt to put a motor vehicle in motion while there is present in his or her blood the prescribed concentration of alcohol [see Road Traffic Act 1961 s 47B(1); Motor Vehicles Act 1959 s 81C for licence disqualification upon expiation; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 reg 4(b)]. The prescribed concentration of alcohol is a concentration of .05 grams or more of alcohol in 100 millilitres of blood. For unlicensed, learner or probationary drivers the prescribed concentration of alcohol is zero [see Road Traffic Act 1961 s 45A for definition]. The following penalties apply:

Category One Offence

Where the concentration of alcohol is more than .05 and less than .08 grams in 100 millilitres of blood [see Road Traffic Act 1961 s 45A for definition; s 47B(1) for penalties; s 47B(3) for licence disqualifications].

First Offence: $1100 fine and mandatory licence disqualification for not less than three months.

Second Offence: $1100 fine and mandatory licence disqualification for not less than six months.

Third Offence: $1100 fine and mandatory licence disqualification for not less than nine months.

Subsequent Offence: $1100 fine and mandatory licence disqualification for not less than twelve months.

Category Two Offence

Where the concentration of alcohol is less than .15 grams, but not less than .08 grams, in 100 millilitres of blood [see Road Traffic Act 1961 s 45A for definition; s 47B(1) for penalties; s 47B(3) for licence disqualifications].

First Offence: a fine of not less than $900 and not more than $1300 and mandatory licence disqualification for not less than six months.

Second Offence: a fine of not less than $1100 and not more than $1600 and mandatory licence disqualification for not less than twelve months.

Third Offence: a fine of not less than $1500 and not more than $2200 and mandatory licence disqualification for not less than two years.

Subsequent Offence: a fine of not less than $1500 and not more than $2200 and mandatory licence disqualification for not less than two years.

Category Three Offence

A concentration of alcohol of .15 grams or more in 100 millilitres of blood [see Road Traffic Act 1961 s 45A for definition; s 47B(1) for penalties; s 47B(3) for licence disqualifications].

First Offence: a fine of not less than $1100 and not more than $1600 and mandatory licence disqualification for not less than twelve months.

Second Offence: a fine of not less than $1600 and not more than $2400 and mandatory licence disqualification for not less than three years.

Third Offence: a fine of not less than $1900 and not more than $2900 and mandatory licence disqualification for not less than three years.

Subsequent Offence: a fine of not less than $1900 and not more than $2900 and mandatory licence disqualification for not less than three years.

In determining whether an offence is a first, second, third or subsequent offence, any previous drink or drug driving offence for which the defendant has been convicted by a court within the prescribed period immediately preceding the date on which the offence under consideration was committed will be taken into account [see Road Traffic Act 1961s 47B(4)]. The prescribed period is three years in the case of a previous offence that is a category one offence (that being an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood) and five years in any other case [see s 47A(3) for definition of prescribed period].

In the case of a first offence, where the court is satisfied by evidence given on oath that the offence is trifling the court may order a lesser period of disqualification but not for less than one month [see s 47B(3)(b)].

The definitions for category 1, 2 and 3 offences came into effect on 1 May 2009, and apply to any offence which occurred on or after that date [see Statutes Amendment (Transport Portfolio-Alcohol and Drugs) Act 2009].

VOLUNTARY BLOOD TEST
When a person’s blood alcohol level is ascertained by a breath test, it is presumed to have been the person’s blood alcohol level for the two hours immediately before the test [see Road Traffic Act 1961 s 47K(1)]. As this presumption cannot be challenged in court in any way except by the results of a blood test, whenever a breath analysis reading shows 0.08 or more the person should consider asking that a blood test be taken.

Driving with prescribed drug present in oral fluid or blood

It is an offence for a person to drive a motor vehicle, or attempt to put a motor vehicle in motion while a prescribed drug is present in his or her oral fluid or blood [see Road Traffic Act 1961 s 47BA; Motor Vehicles Act 1959 s 81D for licence disqualification upon expiation; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 reg 4(b)]. For the purposes of this section, a prescribed drug is: delta-9-tetrahydrocannabinol, methyl amphetamine or 3, 4-methylenedioxymethamphetamine (MDMA) [see Road Traffic (Miscellaneous) Regulations 2014 reg 16].

First Offence: a fine of not less than $900 and not more than $1300 and mandatory licence disqualification for not less than three months.

Second Offence: a fine of not less than $1100 and not more than $1600 and mandatory licence disqualification for not less than six months.

Third Offence: a fine of not less than $1500 and not more than $2200 and a mandatory licence disqualification for not less than twelve months.

Subsequent Offence: a fined of not less than $1500 and not more than $2200 and a mandatory licence disqualification for not less than two years.

In determining whether an offence is a first, second, third or subsequent offence, any previous drink or drug driving offence(s) for which the defendant has been convicted by a court within the prescribed period immediately preceding the date on which the offence under consideration was committed will be taken into account [see Road Traffic Act 1961s 47BA(5)]. The prescribed period is three years in the case of a previous offence that is a category one offence (that being an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood) and five years in any other case [see s 47A(3) for definition of prescribed period].

WHERE CHARGES ARE LAID FOR DUI AND PCA
Where a defendant is pleading guilty, and charges have been laid for both DUI and PCA arising from the same incident or set of facts, the Court should first deal with the DUI offence. After that offence has been dealt with, if the PCA charge is not withdrawn by the police, it should be dismissed without proceeding to conviction or penalty [see Police v Jozinovic (2004) 40 MVR 385;[2004] SASC 64].

Refusing a breath test

It is an offence to refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement to submit to an alcotest or breath analysis, particularly to refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted [see Road Traffic Act 1961 s 47E(3) for offence and defences; Jasinski v Police (2004) 234 LSJS 262; [2004] SASC 183 for strict liability offence].

First Offence: a fine of not less than $1100 and not more than $1600 with mandatory licence disqualification for a period not less than twelve months.

Subsequent Offence: a fine of not less than $1900 and not more than $2900 with mandatory licence disqualification for a period not less than three years [see Road Traffic Act 1961 s 47E(3); s 47E(6) for mandatory licence disqualifications].

In the case of a first offence, where the court is satisfied by evidence given on oath that the offence is trifling the Court may order a lesser period of disqualification but for not less than one month [see s 47E(6)(b)].

In determining whether an offence is a first or subsequent offence, any previous drink or drug driving offence(s) for which the defendant has been convicted by a court within the prescribed period immediately preceding the date on which the offence under consideration was committed will be taken into account [see s 47E(7)]. The prescribed period is three years in the case of a previous offence that is a category one offence (that being an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood) and five years in any other case [see s 47A(3) for definition of prescribed period].

Penalties for drink driving offences

Most of the offences for drink and drug driving under the Road Traffic Act 1961 provide that where a person has been convicted by a court previously for a drink or drug driving offence, and that has occurred within the “prescribed period” immediately preceding the date on which the offence under consideration occurred, those previous offences will be taken into account to determine whether the offence is a first, second, third or subsequent offence.

Section 47A provides the “prescribed period” is three years in the case of a previous offence that is a category one offence (that being an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood) and five years in any other case [see s 47A(3) for definition of prescribed period].

On this basis, if a person commits an offence having committed a drink or drug driving offence within the previous five years, they are to be dealt with as a second or subsequent offender.

A person who has committed an offence more than five years earlier will be given a penalty within a first offence category, but the Court may choose to take the previous offence into account and give the driver a higher penalty within that range.

The Court has very limited power to reduce the penalties below the minimum. A court can reduce the minimum disqualification to one month for a first offence if it is satisfied that the offence is trifling. When deciding whether or not an offence is trifling, the court takes into account all of the surrounding circumstances, including the blood alcohol level, the extent of impairment of faculties, the locality, the nature and extent of the driving and the actual or potential damage to the public. A low alcohol reading alone will not be enough to be considered trifling; there must be additional circumstances that are rare and exceptional. A person’s need for a licence is also not relevant. Only rarely will an offence be considered trifling.

Most defendants lose their licence for at least the minimum period, and it is not possible to retain a driver’s licence, even on a restricted basis such as during working hours, even if a defendant establishes that he or she will lose employment as a result. When the disqualification period is over, a person must hold a probationary licence for at least one year.

Section 47J assessment for recurrent offenders

Where a defendant is convicted of a prescribed offence that was committed in metropolitan Adelaide before 1 February 2010, and he or she has previously been convicted of a prescribed offence committed within three years before the date of the later offence, the court must, upon conviction for the later offence and before imposing any penalty, order that the person attend an assessment clinic to determine whether the person is dependent on alcohol or drugs or both [see Road Traffic Act 1961 s 47J; Road Traffic (Miscellaneous) Regulations 2014 reg 26]. A prescribed offence is any offence against:

  • section 47(1): DUI; or
  • section 47B(1): PCA (but does not include an offence against section 47B(1) that is a category one offence); or
  • section 47E(3): refuse an alcotest or breath test; or
  • section 47I(14): refuse to submit to a blood sample) [see Road Traffic Act 1961 s 47J(12) for definition].

The assessment clinic will report to the court on its examination of a defendant. A court that is satisfied that a defendant suffers from alcoholism, or addiction to a drug, must disqualify that person from holding or obtaining a driver’s licence until further order [see Road Traffic Act 1961 s 47J(4)]. It is important to note that if a defendant is ordered to attend a 47J assessment, and does not attend the appointment, the court has the power treat them as if they do suffer from alcoholism or drug addiction, and disqualify them until further order [see s 47J(4)].

To once again be licensed, a person subject to an order may apply to the court for its revocation following the minimum period of disqualification to which he or she would have been liable if dealt with otherwise than under section 47J. This disqualification period also takes into account any disqualification under an instant loss of license.

The Court may revoke an order on the basis that a person no longer suffers from alcoholism or drug addiction or that there is other proper cause for him or her to be allowed to drive, and it may grant a full or conditional licence. Before applying to the Court for this order, a person must submit to a further assessment by the assessment clinic, which then makes a report to the Court [see s 47J].

Alcohol Interlock Scheme conditions

An alcohol interlock device is a breath testing device fitted to a motor vehicle that requires a person to pass a breath alcohol test before they can start their motor vehicle or continue to operate the vehicle. The Statutes Amendment (Transport Portfolio-Alcohol and Drugs) Act 2009 substantially amended the provisions in relation to the Alcohol Interlock Scheme by repealing Division 5A of the Road Traffic Act 1961 sections 48 to 53AA as of 1 May 2009, and introducing sections 81E to 81H into the Motor Vehicles Act 1959 effective from 1 May 2009.

As a consequence, there is currently a mandatory alcohol interlock scheme in accordance with section 81E of the Motor Vehicles Act 1959, and a transitional voluntary alcohol interlock scheme in accordance with schedule 6, clause 1 of that Act. The transitional conditions apply where prior to 1 May 2009, a person has received notice from the Registrar of Motor Vehicles or an order from a court which allows him or her to partake in the alcohol interlock scheme after the half-way point on their licence disqualification [see Motor Vehicles Act 1959 - Schedule 6(1) for further information and penalties].

In accordance with the Motor Vehicles Act 1959 section 81E(3), if a person who applies for a licence has been disqualified by an order of a court on conviction for a serious drink driving offence (which is any drink driving offence but not a category one offence or a category two, first offence) which was committed on or after commencement of this section, and that person has not held a licence since the end of the period of disqualification, a licence issued to that person must be subject to mandatory alcohol interlock scheme conditions [see Motor Vehicles Act 1959 s 81E(1) for definition of serious drink driving offence; s 81E(3)(3) for the prescribed minimum period; s 81F for alcohol interlock conditions; s 81H for contravention penalties].

The new alcohol interlock scheme conditions came into effect on 1 May 2009, and apply to any offence which occurred on or after that date [see Statutes Amendment (Transport Portfolio-Alcohol and Drugs) Act 2009].

Alcohol/ Drugs and Driving Offences  :  Last Revised: Mon May 21st 2012
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