Drink driving occurs when a person drives or is in charge of a motor vehicle with a blood alcohol concentration (BAC) exceeding the legal limit, as outlined in section 49(1)(b) of the Road Safety Act 1986. The prescribed BAC limit is zero for probationary licence holders, learner permit holders, and unlicensed drivers (section 52). For full licence holders, the BAC limit is under 0.05.
This article explains Victoria’s drink driving laws, the penalties for drink driving, and what happens if you go to court. For more on a list of all the drink driving charges in Victoria, head to our drink driving lawyers page.
Penalties for drink driving in Victoria
In Victoria, drink driving offences carry penalties, including fines, mandatory licence disqualification, and imprisonment for repeat offending. In addition to the drink driving penalty, upon relicensing, offenders are required to undergo a behaviour change program, have an alcohol interlock device installed and will incur a Z condition on their licence, requiring them to maintain a zero blood alcohol concentration when driving.
| Offence | Maximum fine (penalty units) | Maximum imprisonment term | Minimum interlock period | |
| First offence | Any BAC (s49(1)(b)) | 20 PU ($3,951.80) | No imprisonment | 6 months |
| Refuse a requirement, such as a breath or blood test under s49(1)(c), (ca), (d), (e) or (ea) | 12 PU ($2,371.80) | No imprisonment | NA | |
| Second offence | BAC < 0.15 (s49(1)(b)) | 60 PU ($11,855.40) | 6 months | 12 months |
| BAC ≥ 0.15 (s49(1)(b)) | 120 PU ($23,710.80) | 12 months | 4 years | |
| Refuse a requirement, such as a breath or blood test under s49(1)(c), (ca), (d), (e) or (ea) | 120 PU ($23,710.80) | 12 months | NA | |
| Subsequent offence | BAC < 0.15 (s49(1)(b)) | 120 PU ($23,710.80) | 12 months | 4 years |
| BAC ≥ 0.15 (s49(1)(b)) | 180 PU ($35,566.20) | 18 months | 4 years | |
| Refuse a requirement, such as a breath or blood test under s49(1)(c), (ca), (d), (e) or (ea) | 180 PU ($35,566.20) | 18 months | NA |
Minimum licence disqualification
In Victoria, the length of licence disqualification periods for drink driving penalties is determined by the driver’s blood alcohol concentration (BAC), with higher BAC levels and repeat offences resulting in longer disqualification periods.
| Minimum licence disqualification periods for drink driving (Schedule 1 RSA) | ||
Under 0.05% | 3 months (s50(1A)) | 12 months (s50(1A)) |
| 0.05% or more but less than 0.07 | 3 months (for drivers aged 26 years or more with a 0.05% BAC limit convicted by an infringement notice) (s89C) 6 months in any other case. | 12 months (s50(1A)) |
0.07% or more but less than 0.08 | 6 months | 14 months |
0.08% or more but less than 0.09 | 6 months | 16 months |
0.09% or more but less than 0.10 | 6 months | 18 months |
0.10% or more but less than 0.11 | 10 months | 20 months |
0.11% or more but less than 0.12 | 11 months | 22 months |
0.12% or more but less than 0.13 | 12 months | 24 months |
0.13% or more but less than 0.14 | 13 months | 26 months |
0.14% or more but less than 0.15 | 14 months | 28 months |
0.15% or more but less than 0.16 | 15 months | 30 months |
0.16% or more but less than 0.17 | 16 months | 32 months |
0.17% or more but less than 0.18 | 17 months | 34 months |
0.18% or more but less than 0.19 | 18 months | 36 months |
0.19% or more but less than 0.20 | 19 months | 38 months |
0.20% or more but less than 0.21 | 20 months | 40 months |
0.21% or more but less than 0.22 | 21 months | 42 months |
0.22% or more but less than 0.23 | 22 months | 44 months |
0.23% or more but less than 0.24 | 23 months | 46 months |
0.24% or more | 24 months | 48 months |
New drink driving laws in Victoria
The Victorian Government has introduced stricter penalties for drink driving to prevent the consequences of drink driving and promote safety on the roads for everyone.
Effective 17 October 2024, all drunk driving offenders will be required to maintain a zero blood alcohol content (BAC) for three years after completing the Alcohol Interlock Program. This program mandates the installation of a breath-testing device in offenders’ vehicles, which prevents the car from starting if alcohol is detected. The interlock period ranges from six months to four years, depending on the severity of the offence.
Victoria’s penalties for drink driving are among the toughest in Australia. 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.
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.
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
- Consume alcohol whilst instructing a learner driver.
Drink driving infringement notice
Traffic infringement notices are only issued for first offences, where the authorities can issue an infringement notice or take you to court. An infringement notice will not be issued for subsequent drink driving offences or drink driving offences with a BAC of .15 or more. In these cases, charges are laid for the offence, and the matter is dealt with in court unless the prior offence is over 10 years old.
The penalties for drink driving traffic infringement notices are set out in the table above for first offenders.
Impoundment & Forfeiture
If a police officer believes on reasonable grounds that a motor vehicle has been used in the commission of drink driving (or a relevant offence), police may access the vehicle, seize or require it to be surrendered and impound or immobilise the vehicle for a designated period. For a drink driving offence with a BAC of more than 0.10, the vehicle may be impounded for 30 days (s84F).
Drink driving and immediate suspension
If you are a repeat offender, have a BAC of 0.10 or higher and hold a full licence, or a BAC of 0.07 or higher with a learner or probationary license, your licence can be suspended immediately by a police officer for drink driving (s85(1)). A police officer can suspend your licence at any time after filing the charge sheet for the offence until the charge has been determined.
An immediate licence suspension means you will receive a section 85 notice. Section 85S states that you can 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 before listing a section 85 appeal. Then, on appearing in 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 satisfy the test, you should call our office and speak to one of our experienced traffic lawyers.
The suspension under this section will be in effect for the period specified on the infringement notice or until any court-imposed cancellation and disqualification takes effect. However, if the charge proceeds to court, resulting in licence disqualification, the time spent under the immediate suspension will be taken into account in determining the final disqualification period.
What’s the difference between suspension and cancellation?
- Driver licence suspension means you cannot drive for a specific period, and once the period has ended, your licence or permit will become valid again.
- Driver licence cancellation means you cannot drive for a specific period, and once the period ends, you must attend VicRoads to reapply for your licence or permit.
What is considered a first drink driving offence?
What is considered a first offence is somewhat confusing. Section 48(2) of the Road Safety Act 1986 tells us that any prior offence, no matter how old, will make any 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 licence suspension period a Magistrate must impose. 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, the new offence will not be a subsequent offence for the purpose of section 50 of the RSA. Please be aware this only helps determine the minimum time required. Offenders can (and often do) receive a more prolonged time off the road.
Do I have to go to court for drink driving?
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 that if you receive an infringement notice for drunk driving disqualifying you for 3 months and you appeal that to court and end up pleading guilty, you will be subject to a minimum of 6 months disqualification. Therefore, 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.
Drink driving and convictions
A conviction for drink driving is significant as it can affect whether the offence is disclosed on a criminal record and future sentencing. Make sure your lawyer understands how to make a non-conviction submission. The offence is spent if the court finds you guilty of drink driving without conviction and you comply with any imposed conditions (e.g., good behaviour). It will not generally be disclosed on a criminal record check. However, if the court finds you guilty with conviction, the offence will be disclosable on your criminal record until the end of the required conviction period, which is 10 years for adults. However, all convictions, even spent convictions, are disclosable in court if you re-offend. For example, all prior drink driving offences, including infringements, will be presented to the Magistrate during sentencing.
Defences
There are defences against drink driving, so you should obtain private legal advice if you intend to contest the charges. Potential defences include:
- Challenging the accuracy of the breathalyser or blood test results.
- If law enforcement did not have lawful grounds to conduct a blood alcohol test, this might form a defence.
- Presenting evidence of extreme stress or unforeseen circumstances may reduce penalties; however, minimum disqualification periods are mandatory.
Getting your licence or learner permit back
Depending on the offence and circumstances, you may have to:
You can apply to get your licence back once you have completed the drink driving penalty penalty. If you did not go to court for the offence, you can apply directly to VicRoads. If your drink driving matter went to court, you need to apply for a licence eligibility order (LEO) from the court before VicRoads can issue a new licence.
Before being eligible to be relicensed, you will need to
- Attend the Magistrate’s court to arrange a hearing for an LEO (you may be required to arrange an interview with Victoria Police before your court hearing)
- Ensure you have all the documents necessary for the LEO hearing, such as certificates of the Behaviour Change Program undertaken and your driving history
- Complete the Behaviour Change Program; and
- Install an alcohol interlock device.
You will have a Z licence condition imposed when you are relicensed, which restricts you to a zero BAC limit for three years (or longer if you have an alcohol interlock). Having an alcohol interlock condition means that you will only be allowed to drive a vehicle fitted with an interlock.
Alcohol interlocks
In Victoria, an alcohol interlock is fitted to the vehicle of drivers who have been convicted of 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.
Be very careful if you have to attend court about getting your driver’s licence back. The course instructor will often tell you that you do not need a lawyer when you attend court, but this is usually not the case in practice. We have seen several incidents where unrepresented clients have been told to return in 3 months following their evidence.
What Should You Do Next?
Facing a court appearance for a drink driving offence can be intimidating. The formal courtroom setting, with a magistrate and prosecutor discussing your case, can feel overwhelming. Having a skilled lawyer by your side is important to guide you through the process and protect your rights.
If you’ve received an infringement notice, seeking legal advice is essential before deciding whether to contest it in court. If the authorities choose to lay charges and take you to court, or if you decide to go to court to contest an infringement notice and the court finds you guilty, more severe penalties may apply.
Professional guidance can help you understand your options and avoid unnecessary court appearances or harsher penalties, such as extended licence disqualification periods. Investing in expert legal advice is a wise choice that can save you time, reduce stress, and potentially minimise the impact on your life.
Navigating drink driving can be complex. If you need assistance understanding your legal options, contact our office to speak with one of our experienced drink-driving lawyers today.
