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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

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.

This offence differs from the offence of driving while exceeding the prescribed concentration of alcohol in your blood ("Exceed PCA").

Driving under the influence with child present in vehicle

A person who drives, or attempts to drive, a vehicle so much under the influence of alcohol or drugs as to be incapable of exercising effective control of the vehicle AND while a child under the age of 16 years is present in the vehicle, is guilty of an offence [see Road Traffic Act 1961 (SA) s 47(1a)].

The same penalties apply as if the person was charged with driving under the influence pursuant to section 47(1) of the Road Traffic Act 1961 (SA).

In the event a person is charged with driving under the influence while a child is present in the vehicle, and the court is not satisfied that the offence has been committed, the court can instead convict the person of driving under the influence pursuant to section 47(1) of the Road Traffic Act 1961 (SA) if that offence has so been established [see Road Traffic Act 1961 (SA) s 47(1b)].

Where a person is convicted of driving under the influence while a child is present in the vehicle, they will be required to undertake a drug and alcohol dependency assessment before reapplying for their licence, to show they are no longer dependant on drugs or alcohol - see Drug and Alcohol Assessment;  [Motor Vehicles Act 1959 (SA) s 79B(1)(c)].

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.

Prescribed concentration of alcohol (PCA) where child present in vehicle

A person can be charged with a separate PCA offence if they drive, or attempt to drive, a motor vehicle with more than the 'prescribed concentration of alcohol' in their blood AND a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47B(1a)].

For the purposes of this offence, the prescribed concentration of alcohol is 0.08 or higher (Category 2 or higher). A person charged with this offence faces the same penalty as if they were charged with the equivalent offence pursuant to section 47B(1) of the Road Traffic Act 1961 (SA).

Where a person is convicted of driving with more than the prescribed concentration of alcohol in their blood and while a child aged under 16 years is present, they will be required to undergo a drug or alcohol dependency assessment before reapplying for their licence - see Drug and Alcohol Assessment; Motor Vehicles Act 1959 (SA) s 47B(1)(c)(i).

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; 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].

As of 8 March 2018, a mandatory 3 month licence disqualification applies for a first offence of driving with prescribed drug in oral fluid or blood.

First Offence: (if expiated) expiation fee of $600 and disqualification of 3 months; OR (if court issued) 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 12 months.

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

Subsequent Offence: a fined of not less than $1500 and not more than $2200 and a 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(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].

Driving with prescribed drug while child aged under 16 years present in vehicle

It is an offence to drive a vehicle where a prescribed drug is present in a person's oral fluid or blood, AND a child aged under 16 years is also present in the vehicle at the time of the offence [see Road Traffic Act 1961 (SA) s 47BA (1a)].

Mandatory licence disqualifications apply for this offence. The same penalties apply as if the person was charged with Driving with a prescribed drug in oral fluid or blood pursuant to section 47BA(1) of the Road Traffic Act 1961 (SA). Penalties are as follows:

First Offence: If expiated - $600 [see Road Traffic (Miscellaneous) Regulations 2014 (SA) Schedule 4 Part 2] and 4 demerit points; licence disqualification of 3 months; OR

If court ordered - $900 - $1300; 4 demerit points; licence disqualification of not less than 6 months.

Second Offence: $1100 - $1600; 4 demerit points; licence disqualification of not less than 12 months.

Third Offence: $1500 - $2200; 4 demerit points; licence disqualification of not less than 2 years.

Subsequent Offence: $1500 - $2200; 4 demerit points; licence disqualification of not less than 3 years.

A person convicted of this offence will be required to undergo a drug dependency assessment prior to reapplying for their licence at the end of the disqualification period, to show they are not dependant on drugs [see Motor Vehicles Act 1959 (SA) 79B(2)(c)].

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].

Refusing a drug screening test, oral fluid analysis or blood test

It is an offence to refuse or fail to submit to a drug screening test, oral fluid analysis or blood test (Road Traffic Act 1961 (SA) s 47EAA). The penalties that apply are:

First Offence: a fine of not less than $900 and not more than $1300 with a mandatory licence disqualification for a period not less than 12 months;

Subsequent Offence: a fine of not less than $1500 and not more than $2200 with a mandatory licence disqualification for a period not less than 3 years.

See Road Traffic Act 1961 (SA) s 47EAA(9); Road Traffic Act 1961 (SA) s 47EAA(16).

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.

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 (SA) 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 (SA), 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 (SA) - Schedule 6(1) for further information and penalties].

In accordance with the Motor Vehicles Act 1959 (SA) 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 (SA) 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].

A person who is subject to the mandatory alcohol interlock scheme is exempt from a requirement to undergo a drug or alcohol dependency assessment as contained in sections 79B(1) and 79B(2) of the Motor Vehicles Act 1959 (SA).

Drug and alcohol dependency assessments

Special provisions relating to drug and alcohol dependency assessments apply to certain people reapplying for their licence at the end of a disqualification period.

A person will be required to undergo an alcohol dependency assessment in order to regain their licence, where the offence for which the person was disqualified for:

  • was a drink offence where a child aged under 16 was also present in the vehicle [see Road Traffic Act 1961 (SA) ss 47(1a), 47B(1a), 47E(3a) or 47I(7); Motor Vehicles Act 1959 (SA) s 79B(1)(c)(i)]; OR
  • was a prescribed drink driving offence (i.e. anything other than a Category 1 PCA offence), and they have been convicted of at least 1 other prescribed drink driving offences OR have been convicted of, or expiated, at least 2 other drink driving offences, within the preceding 5 years before the commission of the disqualifying offence [see Motor Vehicles Act 1959 (SA) s 79B(1)(c)(ii); OR
  • was a drink driving offence and they have been convicted of, or expiated, at least 2 other drink driving offences committed within the preceding 5 years before the commission of the disqualifying offence [see Motor Vehicles Act 1959 (SA) s 79B(1)(c)(iii)].

In these instances, prior to re-issuing the person's licence, the Registrar of Motor Vehicles must direct the person to submit to an assessment for an alcohol dependency program, unless the Registrar is satisfied that the person has already completed an alcohol treatment program not more than 60 days prior before reapplying for their licence, and that they are not dependent on alcohol [see Motor Vehicles Act 1959 (SA) s 79B(1)].

Similar provisions apply to certain drug driving offences. A person will be required to undergo a drug dependency assessment in order to regain their licence, where the offence for which the person was disqualified for:

  • was a drug driving offence where a child aged under 16 years was also present in the vehicle [see Road Traffic Act 1961 (SA) ss 47(1a), 47BA(1a), 47EAA(9a), 47I(7); Motor Vehicles Act 1959 (SA) s 79B(2)(c)(i)]; OR
  • was a drug driving offence and they have been convicted of, or expiated, at least 1 other drug driving offence within the preceding 5 years before the commission of the disqualifying offence [see Motor Vehicles Act 1959 (SA) s 79B(2)(c)(ii)].

In these instances, prior to re-issuing the person's licence, the Registrar of Motor Vehicles must direct the person to submit to an assessment for a drug dependency program, unless the Registrar is satisfied that the person has already completed an drug treatment program not more than 60 days prior before reapplying for their licence, and that they are not dependent on drugs [see Motor Vehicles Act 1959 (SA) s 79B(2)].

If a person undergoes a drug or alcohol dependency assessment, and on the basis of the report they are deemed to be dependant on drugs or alcohol, the Registrar of Motor Vehicles must refuse to issue them a licence until they are satisfied the person is no longer drug or alcohol dependent [see Motor Vehicles Act 1959 (SA) ss 79B(4) and 79B(5)]. The Registrar can consider reports from approved drug and alcohol assessment providers in determining whether to re-issue the licence. A person is liable for the cost of undergoing the drug or alcohol dependency assessment(s) themselves.

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