21Prescribed concentration of alcohol and prescribed drug

21 Prescribed concentration of alcohol and prescribed drug in bodily fluid (a) has been— or (b) has, within the relevant period, the prescribed concentration of alcohol in the person’s blood or breath; and (c) has, within the relevant period, a prescribed drug in the person’s oral fluid or blood. (a) for a first offender—the penalty mentioned in table 21, column 3 for the concentration of alcohol at a level specified in column 2; or

(b) for a repeat offender—the penalty mentioned in table 21, column 4 for the concentration of alcohol at a level specified in column 2. Note A person other than a special driver does not commit an offence against s (1) if the concentration of alcohol in the person’s blood or breath is at level 1 (see s 4C and s 4E). (3) A driver trainer convicted of an offence against subsection (1) is not punishable by imprisonment. (4) A defendant in a prosecution for an offence against this section cannot liability) in relation to the identity of the prescribed drug if the defendant claims to have— (a) considered, and been under a mistaken belief about, the identity of the prescribed drug; and (b) believed that the prescribed drug was a controlled drug. (5) A defendant in a prosecution for an offence against this section cannot liability) in relation to having delta-9-tetrahydrocannabinol in the defendant’s oral fluid or blood if the defendant’s mistake relates to the effect of consumption of a cannabis food product on the presence of delta-9-tetrahydrocannabinol in the defendant’s oral fluid or blood. (6) In a proceeding for an offence against subsection (1), evidence may be given of the concentration of alcohol in the person’s blood or breath based on— (a) for proof of the concentration of alcohol in the person’s blood or breath—an analysis of a sample of the person’s breath carried out in accordance with this Act; or (b) for proof of the concentration of alcohol in the person’s blood— an analysis of a sample of the person’s blood carried out at an approved laboratory and certified accurate by an analyst.

(7) In a proceeding for an offence against subsection (1), evidence may be given that a person has a prescribed drug in the person’s oral fluid or blood based on— (a) for proof of the presence of a prescribed drug in the person’s oral fluid—an analysis of a part of a sample of the person’s oral fluid under section 13G (Oral fluid—confirmatory analysis) that indicates that a prescribed drug is present in the sample; or (b) for proof of the presence of a prescribed drug in the person’s blood—an analysis of a part of a sample of the person’s blood under section 15A (Analysis of blood samples) that indicates that a prescribed drug is present in the sample. (8) In this section: cannabis food product—see the Drugs of Dependence Act 1989, controlled drug—see the Criminal Code, section 600 (1). relevant period means the period beginning when the person stopped being the driver of the vehicle or the driver trainer in the vehicle and (a) both of the following could be carried out under this Act: (i) a breath analysis of the person; (ii) an oral fluid analysis of the person; or (b) if a sample of the person’s blood was taken under section 15 (Taking blood samples from people in custody) or section 15AA (Taking blood samples from people in hospital)—a sample of the person’s blood could be taken under the section.