48Interpretative provisions

48 Interpretative provisions (1) For the purposes of this Part— S. 48(1)(a) amended by Nos 94/2003 s. 8(3)(a)(b), 49/2014 s. 6(1)(a). (a) if it is established that at any time within 3 hours after an alleged offence against paragraph (a), (b) or (bc) of section 49(1), a certain concentration of alcohol was present in the blood or breath of the person charged with the offence it must be presumed, until the contrary is proved, that not less than that concentration of alcohol was present in the person's blood or breath (as the case requires) at the time at which the offence is alleged to have been committed; and S. 48(1)(ab) inserted by No. 14/2000 s. 5(1). (ab) if it is established that at any time within 3 hours after an alleged offence against paragraph (ba) of section 49(1), a certain drug was present in the body of the person charged with the offence it must be presumed, until the contrary is proved, that that drug was present in the person's body at the time at which the offence is alleged to have been committed; and S. 48(1)(ac) inserted by No. 111/2003 s. 6(1), amended by No. 49/2014 s. 6(1)(b). (ac) if it is established that at any time within 3 hours after an alleged offence against paragraph (bb) or (bc) of section 49(1), a certain drug was present in the blood or oral fluid of the person charged with the offence it must be presumed, until the contrary is proved, that that drug was present in the person's blood or oral fluid at the time at which the offence is alleged to have been committed; and S. 48(1)(b) amended by No. 92/2001 s. 13(2). (b) a person is not to be taken to be in charge of a motor vehicle unless that person is a person to whom section 3AA(1)(a), (b), (c) or (d) applies. S. 48(1AA) inserted by No. 63/1998 s. 4, substituted by No. 23/2001 s. 4(1), repealed by No. 92/2001 s. 13(3), new s. 48(1AA) inserted by No. 1/2002 s. 4. (1AA) Despite subsection (1)(b) and section 3AA, a person is not to be taken to be in charge of a motor vehicle merely because the person attempts, or intends, to start the motor vehicle if the motor vehicle has an approved alcohol interlock installed and maintained by an approved alcohol interlock supplier or a person or body authorised by such a supplier. For ***approved alcohol interlock*** and ***approved alcohol interlock supplier***, see section 3(1). S. 48(1AAA) inserted by No. 23/2001 s. 4(2), repealed by No. 92/2001 s. 13(3). S. 48(1AB) inserted by No. 63/1998 s. 4, substituted by No. 23/2001 s. 4(3), repealed by No. 92/2001 s. 13(3). S. 48(1AC) inserted by No. 14/2000 s. 5(2), amended by No. 6/2018 s. 68(Sch. 2 item 109.1). (1AC) For the purposes of an alleged offence against paragraph (ba) of section 49(1) it must be presumed that a drug found by an analyst to be present in the sample of blood or urine taken from the person charged 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 or affirmed evidence given by him or her which is corroborated by the material evidence of another person. S. 48(1AD) inserted by No. 14/2000 s. 5(2). (1AD) For the purposes of sections 55A and 55B, a driver is not to be taken to be impaired unless his or her behaviour or appearance is such as to give rise to a reasonable suspicion that he or she is unable to drive properly. S. 48(1A) inserted by No. 53/1989 s. 7(1), amended by Nos 94/2003 ss 8(4), 10(2), 49/2014 s. 6(2), 6/2018 s. 68(Sch. 2 item 109.1). (1A) For the purposes of an alleged offence against paragraph (f), (g) or (j) of section 49(1) it must be presumed that the concentration of alcohol indicated by an analysis to be present in the breath of the person charged or found by an analyst to be present in the sample of blood taken from the person charged (as the case requires) was not due solely to the consumption of alcohol 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 or affirmed evidence given by him or her which is corroborated by the material evidence of another person. S. 48(1B) inserted by No. 111/2003 s. 6(2), amended by Nos 49/2014 s. 6(3), 6/2018 s. 68(Sch. 2 item 109.1). (1B) For the purposes of an alleged offence against paragraph (h), (i) or (j) of section 49(1) it must be presumed that a drug found by an analyst to be present in the sample of blood or oral fluid provided by, or taken from, the person charged 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 or affirmed evidence given by him or her which is corroborated by the material evidence of another person. S. 48(2) substituted by No. 89/1991 s. 9, amended by No. 81/2006 s. 3. (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— S. 48(2)(d) amended by Nos 23/2001 s. 4(4), 93/2009 s. 23(1), 49/2019 s. 107. (d) an offence, other than a supervising 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 S. 48(2)(f) amended by No. 93/2009 s. 49(2)(a), substituted by No. 56/2013 s. 5(1). (f) an offence referred to in section 89 of the **Sentencing Act 1991** where the court on convicting or finding the person guilty of the offence made a finding that it was committed while the person was under the influence of alcohol or a drug, or both alcohol and a drug, which contributed to the offence or such a finding is taken to have been made by force of section 89C(3) of that 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. S. 48(3) amended by Nos 78/1987 s. 6, 14/2000 s. 5(3). (3) An approval or authority given under or for the purposes of section 55 or 55A(3) by the Chief Commissioner of Police may be revoked at any time in the manner in which it was given and on revocation ceases to have any effect. S. 48(4) amended by Nos 37/2014 s. 10(Sch. item 147.8), 49/2019 s. 116(Sch. 1 item 94). (4) For the avoidance of doubt it is declared that nothing in this Part requires a person who is in a dwelling to allow a police officer, the Secretary or an employee in the Department to enter that dwelling without a warrant. S. 48(5) inserted by No. 56/2013 s. 5(2). (5) Subject to subsection (6), if a person who is convicted, or found guilty, of an offence referred to in section 89 of the **Sentencing Act 1991** (the ***new offence***) has at any time been convicted, or found guilty, of— S. 48(5)(a) amended by No. 7/2019 s. 14. (a) the same or any other offence referred to in subsection (2)(a) to (e) (other than an offence against paragraph (a) involving only a drug, or against paragraph (ba), (bb), (ca), (eb), (h) or (i), of section 49(1)) or in that section 89; or (b) an offence against any previous enactment corresponding to any section an offence against which is referred to in that section 89; or (c) any other offence, whether committed in Victoria or elsewhere, the necessary elements of which consist of elements that constitute any of the offences covered by paragraph (a) or (b)— (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. S. 48(6) inserted by No. 56/2013 s. 5(2). (6) Subsection (5) only applies to an offence referred to in section 89 of the **Sentencing Act 1991** (irrespective of whether it is a new or old offence within the meaning of that subsection) where the court on convicting or finding the person guilty of the offence made a finding that it was committed while the person was under the influence of alcohol, or both alcohol and a drug, which contributed to the offence or such a finding is taken to have been made by force of section 89C(3) of that Act.