What happens after a drink driving charge?
In Victoria, a drink driving charge almost always ends with you losing your licence. What changes from case to case is how long you lose it for, whether you go to court, and what you must do to drive again.
Drink driving laws differ across Australia, and every state and territory has its own rules. This guide explains what happens after a drink driving charge in Victoria, under the Road Safety Act 1986 (Vic). It walks through each stage in the order most people experience it:
- Police test your breath or blood.
- Police may suspend your licence on the spot or issue an infringement notice.
- Your case may go to the Magistrates' Court.
- The court imposes a penalty and cancels your licence for at least a minimum period.
- You apply to get your licence back, often with conditions such as an alcohol interlock.
The outcome depends on three things above all: your blood or breath alcohol concentration (BAC), whether it is your first offence, and the type of licence you hold. If you have just been charged, the most important thing to know is that you usually have choices, and some of them have short deadlines.
Step 1: Police test your breath or blood
Most drink driving charges start with a roadside preliminary breath test. Police can require drivers to undergo this test under section 53 of the Road Safety Act if they find you driving or in charge of a vehicle, have required you to stop at a RBT station, or if they believe you’ve either been the driver or passenger in a vehicle involved in a collision in the past 3 hours. If the result suggests alcohol is present, police can then require an evidentiary breath analysis on a breath analysing instrument under section 55. In certain cases they can also proceed directly to an evidentiary test under s55. In some situations, such as after a crash, police can require a blood sample instead. Refusing any of these tests is a serious offence that results in the maximum time off the road.
The 3-hour rule
Timing matters. A person commits an offence if, within 3 hours after driving or being in charge of a motor vehicle, they provide a breath sample that shows the prescribed concentration of alcohol or more (Road Safety Act s 49(1)(f)). The same 3-hour window applies to blood samples (s 49(1)(g)).
It is not an offence under these paragraphs if the alcohol reading was due solely to drinking after you stopped driving (s 49(1)(f)(ii) and (g)(ii)). However, this defence is very difficult to argue and if you have been driving or been involved in an accident you should not consume any alcohol or drugs.
What can you be charged with?
Section 49(1) of the Road Safety Act creates several drink driving offences. The ones you are most likely to face are:
| Offence | What it means | Section |
|---|---|---|
| Exceeding the prescribed concentration | Driving or being in charge of a vehicle with the prescribed concentration of alcohol or more in your blood or breath | s 49(1)(b) |
| Breath test result over the limit | A breath analysis within 3 hours of driving shows the prescribed concentration or more | s 49(1)(f) |
| Blood test result over the limit | A blood sample taken within 3 hours of driving shows the prescribed concentration or more | s 49(1)(g) |
| Driving under the influence | Being so affected by alcohol or a drug that you cannot properly control the vehicle | s 49(1)(a) |
| Refusing a preliminary breath test | Refusing a roadside test when lawfully required | s 49(1)(c) |
| Refusing a breath analysis or blood test | Refusing to comply with a requirement under s 55 | s 49(1)(e) |
The "prescribed concentration of alcohol" is defined in section 48. For most fully licensed drivers it is 0.05. Some drivers must have a zero alcohol reading under section 52, including learner and probationary drivers and those who have been re-licensed following a disqualification for drink driving.
Note that the law applies to anyone driving or in charge of a motor vehicle. You do not need to be moving to commit an offence.
Step 2: Immediate suspension or an infringement notice
After a positive test, one of two things usually happens. For lower readings on a first offence, police may issue a traffic infringement notice. For higher readings, refusals and repeat offences, police may charge you and suspend your licence straight away.
Immediate licence suspension
Police can suspend your licence by written notice, before any court hearing, in these situations (Road Safety Act ss 85 and 85B):
- Full licence holders with a BAC of 0.10 or more.
- Learner and probationary drivers with a BAC of 0.07 or more.
- Anyone charged with refusing a preliminary breath test, refusing to stop, or refusing a breath analysis or blood test (s 85(3)(b)).
- Anyone charged with a subsequent offence (s 85(3)(c)).
- Anyone over the limit who has been found guilty of certain drink or drug driving offences in the previous 10 years (s 85B(2)(b)(iii)).
If you are charged, the suspension generally lasts until the charge is determined or withdrawn, or the suspension is cancelled on appeal (s 85C(1)). If police suspend your licence based on a breath or blood certificate before charging you, the suspension lasts for the shorter of 12 months or the minimum disqualification period for your reading in Schedule 1 (s 85C(2)).
When you receive a notice of suspension, you must immediately hand over your physical licence card. You do not have to surrender a digital licence (s 85N).
The good news is that time spent suspended is not wasted. Any period of immediate suspension must be deducted from the disqualification the court later imposes (s 50(2)).
You can appeal an immediate suspension to the Magistrates' Court under section 85S but only if you can satisfy the court that there are exceptional circumstances. If granted, the appeal only prevents the temporary suspension and not any period of disqualification imposed if you are subsequently found guilty.
Traffic infringement notices for drink driving
Some first offences can be dealt with by a traffic infringement notice instead of a court case. This is called a drink-driving infringement. It applies only where all of these are true (Road Safety Act s 3, definition of drink-driving infringement):
- the offence is under s 49(1)(b), (f) or (g)
- your BAC was under 0.15
- it is your first offence.
An infringement notice is not a warning. If you do nothing within 28 days, the notice takes effect as a conviction (s 89A(2)). Your licence is then cancelled and you are disqualified from getting a new one (s 89C(1)).
The disqualification period after an infringement notice is:
- 3 months if your BAC was 0.05 or more but under 0.07, you were 26 or older, and you were not a zero-alcohol driver under section 52 (s 89C(2)).
- The Schedule 1 first-offence period in every other case (s 89C(2A)). See the table in Step 4.
If you pay the penalty, you must also surrender your physical licence card by the end of the 28 days (s 89C(8)).
Objecting to an infringement notice
You can object to the notice in writing within the 28 days. Your notice of objection must say that you refuse to pay, that you want a court to deal with the matter, and whether you intend to defend the charge (s 89A(4)–(5)). The infringement notice is then cancelled, and police can only proceed by filing a charge (s 89A(6)).
Objecting is a significant decision. It moves the matter into court, where the full range of court penalties becomes available. Get legal advice before you object or before the 28 days run out. Simply having the matter heard in court will not necessarily allow you to keep your licence and can lead to longer period of licence loss.
Step 3: Going to court
If you are charged rather than given an infringement notice, or if you object to an infringement notice, your case will be heard in court. Drink driving charges under the Road Safety Act are generally dealt with in the Magistrates' Court of Victoria.
What happens at the first hearing
Your charge-sheet will tell you when and where to attend court. At the first hearing, you will usually be asked whether you plead guilty or not guilty. You can ask for an adjournment to get legal advice.
- Pleading guilty: the magistrate hears a summary of the facts from the prosecution and submissions from you or your lawyer, then decides the penalty. For drink driving offences, pleading guilty will always result in licence loss.
- Pleading not guilty: the case is listed for a contested hearing, where the prosecution must prove the charge. You or your lawyer can test the evidence, including how the tests were carried out.
Possible defences
The Road Safety Act sets out specific defences for test results. Each requires you to prove it:
- Breath analysis charges (s 49(1)(f)): it is a defence to prove that the breath analysing instrument was not in proper working order, or was not properly operated, on that occasion (s 49(4)).
- Blood test charges (s 49(1)(g)): it is a defence to prove that the result of the analysis was not correct (s 49(5)).
- Drinking after driving: as explained in Step 1, the breath and blood offences do not apply if the reading was due solely to alcohol consumed after you stopped driving (s 49(1)(f)(ii) and (g)(ii)).
Whether a defence is available depends on the evidence in your case. Procedural issues, such as whether the test was lawfully required and carried out within the 3-hour window, can also matter.
Your BAC goes on the court record
If you are convicted or found guilty, the court must record the alcohol concentration found in your breath or blood (s 49(7)). This reading drives both the minimum licence disqualification and, for repeat offences, the maximum penalty.
When the charge is more serious
If drink driving causes a death or serious injury, the case is no longer just a Road Safety Act matter. The Crimes Act 1958 (Vic) contains much more serious offences:
- Culpable driving causing death: includes driving while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle (Crimes Act s 318(2)(c)). The maximum penalty is level 3 imprisonment (20 years), and the standard sentence is 8 years (s 318(1), (1A)).
- Dangerous driving causing death: level 5 imprisonment (10 years maximum) (s 319(1)).
- Dangerous driving causing serious injury: level 6 imprisonment (5 years maximum) (s 319(1A)).
These are indictable offences. If you are facing one of them, get advice from a criminal lawyer immediately.
Step 4: Penalties and losing your licence
If you are convicted or found guilty of exceeding the prescribed concentration, the court must cancel your licence and disqualify you from getting a new one (Road Safety Act s 50(1)). The court can set a longer disqualification, but it cannot go below the minimum in Schedule 1 (s 50(1A)).
Minimum licence disqualification periods
The minimum period depends on your BAC and whether it is a first or subsequent offence (Road Safety Act Schedule 1):
| BAC (blood or breath) | First offence | Subsequent offence |
|---|---|---|
| Under 0.05 | 3 months | 12 months |
| 0.05 to under 0.07 | 6 months | 12 months |
| 0.07 to under 0.08 | 6 months | 14 months |
| 0.08 to under 0.09 | 6 months | 16 months |
| 0.09 to under 0.10 | 6 months | 18 months |
| 0.10 to under 0.11 | 10 months | 20 months |
| 0.11 to under 0.12 | 11 months | 22 months |
| 0.12 to under 0.13 | 12 months | 24 months |
| 0.13 to under 0.14 | 13 months | 26 months |
| 0.14 to under 0.15 | 14 months | 28 months |
| 0.15 to under 0.16 | 15 months | 30 months |
| 0.16 to under 0.17 | 16 months | 32 months |
| 0.17 to under 0.18 | 17 months | 34 months |
| 0.18 to under 0.19 | 18 months | 36 months |
| 0.19 to under 0.20 | 19 months | 38 months |
| 0.20 to under 0.21 | 20 months | 40 months |
| 0.21 to under 0.22 | 21 months | 42 months |
| 0.22 to under 0.23 | 22 months | 44 months |
| 0.23 to under 0.24 | 23 months | 46 months |
| 0.24 or more | 24 months | 48 months |
The "under 0.05" row applies to drivers who must have a zero alcohol reading. As noted in Step 2, a fully licensed driver aged 26 or older with a first-offence reading from 0.05 to under 0.07 who accepts an infringement notice is disqualified for 3 months instead (s 89C(2)).
Refusals and driving under the influence
Refusing a test does not help you avoid a long disqualification. For refusing a preliminary breath test, refusing to stop, refusing a breath analysis or blood test, or driving under the influence, the minimum disqualification is 2 years for a first offence and 4 years for a subsequent offence (s 50(1B)).
Fines and imprisonment
The court also imposes a penalty. The maximum penalties for exceeding the prescribed concentration rise sharply for repeat offences and high readings (s 49(2A)):
| Offence | BAC under 0.15 | BAC 0.15 or more |
|---|---|---|
| First offence | Fine up to 20 penalty units | Fine up to 20 penalty units |
| Second offence | Fine up to 60 penalty units or up to 6 months' imprisonment | Fine up to 120 penalty units or up to 12 months' imprisonment |
| Any later offence | Fine up to 120 penalty units or up to 12 months' imprisonment | Fine up to 180 penalty units or up to 18 months' imprisonment |
Other drink driving offences carry these maximum penalties:
| Offence | First offence | Second offence | Any later offence |
|---|---|---|---|
| Driving under the influence (s 49(1)(a)) | 25 penalty units or 3 months | 120 penalty units or 12 months | 180 penalty units or 18 months |
| Refusing a test (s 49(1)(c) or (e)) | 12 penalty units | 120 penalty units or 12 months | 180 penalty units or 18 months |
Sources: Road Safety Act s 49(2) and (3).
These are maximums. The actual penalty depends on your circumstances, your driving history and how the court weighs the case. The dollar value of a penalty unit is set each financial year and for 2026 is $209.10.
Step 5: Getting your licence back
Your licence does not come back automatically when the disqualification ends. In most cases you must take several steps before VicRoads will issue a new one.
Licence eligibility order
If your licence has been disqualified for drink driving rather than drug driving, you generally do not require a licence eligibility order to be re-licensed and the process is managed administratively through VicRoads. However, there are courses that must be completed, alcohol interlock conditions and conditions on your licence.
Alcohol interlock
An alcohol interlock is a breath-testing device fitted to your vehicle. The vehicle will not start unless you provide a breath sample with no alcohol. The Act includes rules on:
- directions to impose an interlock condition (s 50AAA)
- applying to avoid an interlock condition (s 50AAAE), with review by the Magistrates' Court (s 50AAAF)
- exemption or removal on medical grounds (s 50AAAD)
- removing the condition at the end of the interlock period (s 50AAAB)
- offences for breaching an interlock condition (s 50AAD).
Interlock periods vary depending on the date of the offence, the BAC reading and whether it is a first or subsequent offence. The periods can range from 6 months to 4 years.
Behaviour change program
Part 5A of the Road Safety Act requires some drink drivers to complete a behaviour change program before they can be relicensed. There are two stages: a first-stage program (s 58C) and a second-stage program (s 58D). Completing the program does not reduce any penalty (s 58G).
Zero alcohol after relicensing
Section 52 of the Road Safety Act sets out when drivers must have a zero alcohol concentration. Drivers who have had their licence cancelled for drink driving may need to keep a zero reading for a period after they are relicensed.
Plan ahead
The relicensing process can take time, and appointments for programs and court hearings can book out. Many people start preparing well before their disqualification ends. A lawyer can tell you exactly which steps apply to you.
Do you need a lawyer for a drink driving charge?
Not every drink driving matter needs a lawyer, but most people benefit from advice early. Many of the key decisions have short deadlines, and some cannot be undone.
A criminal lawyer can help you:
- Decide whether to accept or object to an infringement notice within the 28-day window (s 89A(2)).
- Check the evidence, including whether the tests were lawfully required and carried out within 3 hours of driving, and whether a defence under s 49(4) or (5) is available.
- Challenge an immediate suspension through an appeal to the Magistrates' Court (s 85S).
- Prepare a plea that puts your circumstances, character and driving needs before the magistrate, which can affect the penalty imposed above the minimum.
- Plan the relicensing process, including the licence eligibility order, interlock and behaviour change program.
If you have been charged with drink driving in Victoria, contact our team at Criminal Solicitors Melbourne for advice about your options. Call (03) 8644 7322 or book an appointment online.
Frequently asked questions
Will I lose my licence for a first drink driving offence in Victoria?
Yes. If you are found guilty of exceeding the prescribed concentration, the court must cancel your licence and disqualify you for at least the Schedule 1 minimum (Road Safety Act s 50(1)). If you accept an infringement notice, your licence is cancelled when the 28 days expire (s 89C(1)). There is no option to keep your licence by paying a fine.
Can I keep driving after I am charged?
It depends. If police have given you a notice of immediate suspension, you cannot drive until the suspension ends (ss 85, 85B and 85C). If they have not, your licence generally remains valid until the court cancels it. Driving while suspended or disqualified is a separate offence (s 30).
What happens if I ignore a drink driving infringement notice?
After 28 days, the notice takes effect as a conviction for the offence (s 89A(2)). Your licence is then cancelled and you are disqualified from getting a new one (s 89C(1) and (4)).
Is refusing a breath test better than failing one?
No. Refusing a preliminary breath test or breath analysis carries a minimum 2-year disqualification for a first offence and 4 years for a subsequent offence (s 50(1B)). That matches or exceeds the first-offence minimum for every BAC level in Schedule 1, where the longest is 24 months for a BAC of 0.24 or more.
What if I drank after I stopped driving?
The breath and blood offences in s 49(1)(f) and (g) do not apply if the alcohol reading was due solely to drinking after you stopped driving. Whether this applies depends on the evidence, so get legal advice.
Does time spent suspended count towards my disqualification?
Yes. Any immediate suspension must be deducted from the disqualification period the court imposes (s 50(2)). If you accept an infringement notice after an immediate suspension, the suspension period is also deducted (s 85D(3)).
Important information
This article provides general information about Victorian law as at October 2026. It is not legal advice. Laws change, and the right approach depends on the facts of your case. Speak to a qualified criminal lawyer about your situation.
Sources
- Road Safety Act 1986 (Vic), Authorised Version No. 236, incorporating amendments as at 15 April 2026: ss 49, 50, 85–85E, 85N, 89A, 89C and Schedule 1.
- Crimes Act 1958 (Vic), Authorised Version No. 323, incorporating amendments as at 30 September 2026: ss 318 and 319.
