When you consider that 25% of people involved in a motor vehicle fatality have over .05% alcohol in their system, it is not difficult to see why the Victorian Judicial system takes a hard line on drink driving.
This section explains Victoria’s drink driving laws, various drink driving offences, the penalties, and what happens if you go to court.
What’s the law?
Professional drivers (i.e. truck, bus or taxi drivers), probationary and learner drivers, and people who have previously committed drink driving offences must have a zero blood alcohol concentration (BAC). All other drivers must stay under .05 BAC.
Drink driving offences are not limited to those which occur on public roads. They can be committed on private property. Those caught driving with a BAC over the legal limit face heavy fines, loss of licence and, for the most serious offenders, possible imprisonment.
It is an offence to:
- drive under the influence of alcohol;
- fail to stop at a booze bus or Random Breath Test station;
- fail to cooperate when a breath or blood test is being conducted;
- refuse to provide a breath or blood sample; or
- have a BAC of .05 or more while accompanying a learner driver.
Offences and penalties;
Traffic infringement notices are only issued for first offences, where the authorities can choose to issue you with an infringement notice or take you to court.
Infringement notices are not issued for subsequent drink driving offences, or for drink driving offences with a BAC of .15 or above. In these cases, charges are laid for the offence and the matter is dealt with at court unless the prior offence is more than 10 year old.
What is considered a first offence is somewhat confusing. Section 48(2) of the Road Safety Act tells us that any prior offence, no matter how old, will make the new offence a subsequent matter for the purposes of sentencing (per section 49 of the Road Safety Act).
However, things change when considering the minimum mandatory time off the road that must be imposed by a Magistrate. Here, section 50AA tells us that if the date of the new offence is 10 years after the finding of guilt for the first offence then the new offence will not be a subsequent offence in respect of section 50 of the Road Safety Act.
Please be aware this only helps determine the minimum time that must be imposed. Offenders can (and often do) receive a longer time off the road.
It is a complex area of the law. If you would like further assistance in understanding you legal position; you should call our office to speak to one of our experienced traffic lawyers today.
If the authorities choose to lay charges and take you to court, or if you choose to go to court because you do not agree with the infringement notice and the court finds you guilty, more serious penalties may apply.
The value of a penalty unit changes every year. Refer to the Office of the Victorian State Government fines and penalty section for the yearly value of penalty units.
The penalties for drink driving traffic infringement notices are set out below for first offenders.
|BAC||Licence type||Fine||Licence action / points|
|Less than .05||Zero BAC licence (e.g. professional drivers, P licence, L permit)||2.5 penalty units||Cancellation of licence/permit and disqualification for 6 months (3 months if dealt with by way of infringement notice)|
|.05 to less than .07||Zero BAC licence (e.g. professional drivers, P licence, L permit) and full licence (under 26 years)||3 penalty units||Cancellation of licence/permit and disqualification for 6 months (3 months if dealt with by way of infringement notice)|
|.05 to less than .07||Full licence (26 years or older)||3 penalty units||Cancellation of licence/permit and disqualification for 6 months (3 months if dealt with by way of infringement notice)|
|.07 to less than .15||All drivers||3 to 4.25 penalty units||Cancellation of licence/permit and disqualification for 6-14 months depending on BAC|
|.15 or above; or for a subsequent offence||All drivers||Traffic infringement notices are not issued for BAC of .15 or above, or for subsequent offences. Charges are laid for the offence and the matter is dealt with at court.||Attend Magistrates’ Court (see notes below)|
On the spot suspension
Authorities have the power to immediately suspend your licence or learner permit in certain situations. Examples include learner or probationary drivers with a BAC of .07 or more, full licence holders with a BAC of .10 or more, and repeat offenders. The length of suspension depends on the circumstances – for example, it could last until the charges have been decided at court.
This immediate suspension means you will be issued with a section 85 notice, so called because it relates to section 85 of the Road Safety Act. Section 85S states that you are able to appeal the imposition of any section 85 notice. Should you wish to do this, you will need to seek specialist legal advice.
You must give 14 days notice to the Commissioner of Police prior to listing a section 85 appeal. Then, on appearing at court, you must satisfy the Magistrate that exceptional circumstances existed at the time of the offence. What are considered ‘exceptional circumstances’ vary from case to case. To find out whether you might be able to satisfy the test you should call our office and speak to one of our experienced traffic lawyers.
Any time off the road served under a section 85 notice will be deducted from any time later imposed by the Magistrate in relation to the offence.
Choice to appear in court
If you choose to have your case heard in court (or if the matter is dealt with by charges instead of an infringement notice) and you are found guilty, the court may fine you and cancel your licence or learner permit for up to six months for offences with a BAC under .05, or at least six months for offences with a BAC of at least .05 but less than .07.
For a BAC of .07 or more (.05 or more for subsequent offences) the court must cancel your licence or learner permit for at least six months for a first offence, or 14 months for subsequent offences.
Be aware if you receive an infringement notice for drink driving disqualifying you for 3 months and you appeal that to Court and then end up pleading guilty, you will be subject to a minimum of 6 months disqualification. The moral of the story…only appeal a drink driving infringement notice relating to 3 months off the road if you think you can successfully challenge the infringement, or you will get double the time off the road on a finding of guilt at the Magistrates Court.
Compulsory court appearance
Those committing the most serious offences and repeat offenders face possible imprisonment. The penalties for repeat drink driving offenders have been substantially increased with the maximum penalty now 18 months in prison. Offenders in these categories will have an alcohol interlock licence condition imposed when they are relicensed.
Spent Conviction legislation
What happens in court?
There are defences against drink driving, so you should obtain private legal advice if you intend to contest the charges.
If found guilty, you will be fined and your licence or learner permit will probably be cancelled. The court can also decide to record a conviction. You cannot drive again until you have a valid licence or learner permit.
Getting your licence or learner permit back
Depending on the offence and circumstances you may also have to:
- complete a driver education program;
- obtain a Licence Restoration Order from the Magistrates’ Court or VicRoads
- have a Z licence condition imposed when you are relicensed – this restricts you to zero BAC for three years (or longer if you have an alcohol interlock);
- complete at least two assessments for alcohol problems; or
- have an alcohol interlock condition imposed when you are relicensed in most cases. This means that you will only be allowed to drive a vehicle fitted with an interlock.
In Victoria, an alcohol interlock is fitted to the vehicle of drivers who have been convicted of serious drink driving offences. The interlock requires you to provide a breath test every time you start your vehicle, and during the trip. If alcohol is detected in your body, the vehicle will not start.
If you have to attend court in relation to getting your driver’s licence back (only now in relation to drug driving and serious motor vehicle offences involving alcohol or drugs), be very careful. The course instructor will often tell you that you do not need a lawyer when you attend court, but in practice this is often not the case. We have seen a number of incidents where unrepresented clients have been told to come back in 3 months following their evidence.
How do I stay below the limit?
It is safest not to drink alcohol at all if you are going to drive. Do not drive if there is any doubt about your BAC. Make alternative arrangements: call a taxi, get a lift with someone who has not been drinking or stay overnight. Plan how you will get home before you start drinking. See Alcohol & road safety.
What’s the difference between suspension and cancellation?
Suspension – you cannot drive for a specific period. Once the suspension period has finished your licence or permit becomes valid again.
Cancellation – you cannot drive for a specific period. When completed, you must attend a VicRoads Customer Service Centre and reapply for your licence or permit.
The reissue of a licence or permit cancelled for a drink driving offence is not automatic. You may need to complete a drink driving education course and/or complete at least two assessments for alcohol problems. You may also have to attend the Magistrates’ Court to argue the case for the reissue of your licence or permit.