DUI Penalties in Victoria Explained 2026

Every year, thousands of Victorians are charged with drink or drug driving offences — many of them people who genuinely believed they were safe to drive. A single decision to get behind the wheel can have serious and lasting consequences not only for the driver, but for their friends, family, and for others sharing the road.

Driving with alcohol or drugs (or both) in your system can result in loss of licence, a criminal conviction and in serious cases, a term of imprisonment. Understanding the law, the penalties for drink and drug driving offences, and your options is not just useful — it could be the difference between protecting your future and losing it.

 

In Victoria, ‘DUI’ is commonly used as a shorthand for any drink or drug driving offence, but it has a specific legal meaning that is distinct from the other offences that fall under the broader umbrella of drink and drug driving, and a significantly different penalty.

Drink and drug driving offences in Victoria are primarily governed by section 49 of the Road Safety Act 1986 (Vic).

One of the more serious examples of this type of offence is commonly known as a DUI and is found in section 49(1)(a). A person is guilty of this offence if they drive, or are in charge of, a motor vehicle while under the influence of intoxicating liquor or any drug to such an extent that they are incapable of having proper control of the vehicle.

This offence does not require a particular breath test or blood test result, and it is often laid as an alternative charge to an exceeding prescribed concentration offence — commonly referred to as an XPCA (alcohol) or XPCD(drugs).

Rather than a specific reading, the manner of driving is what is considered against the standard of an ordinary reasonable competent driver. ‘Bad’ driving is only an indication, and the manner of driving will need to be assessed in conjunction with other observations including the driver’s behaviour and the surrounding circumstances.

A DUI charge will often be laid as an alternative to XPCA/XPCD if:

– There are 000 calls made by other road users/witnesses about the manner of driving

– There are recordings of the driving such as dash-camera or CCTV which shows the driver struggling to stay in a lane, swerving on the road, failing to negotiate bends, or breaching other road rules generally

– Any accidents or collisions have occurred

– Police have made observations or commentary while in pursuit; or

– The driver’s BAC reading is high — typically above 0.150.

The most severe driving offences occur when there has been a serious injury or fatality. The presence of alcohol or drugs (or both) is considered highly aggravating, and where the driving has caused the death of another person, the charge of culpable driving may be laid.[3]

Culpable driving is defined in section 318(2) to include four distinct bases: driving recklessly, driving with gross negligence, driving while so affected by alcohol as to be incapable of having proper control of the vehicle, and driving while so affected by drugs as to be incapable of having proper control.

Where the charge rests on alcohol or drug intoxication, the prosecution must demonstrate that the accused’s capacity to control the vehicle fell so far short as to render them incapable of proper control — not merely that they had consumed alcohol or drugs, or recorded a prescribed BAC. Case law confirms that it is not necessary to show that the driver was driving under the influence at the time of the incident itself — it can be at any point during the journey.

A commonly charged alcohol offence is found in section 49(1)(b). A person is guilty if they drive, or are in charge of a motor vehicle, while the prescribed concentration of alcohol (PCA) is present in their blood or breath.

For most drivers, the PCA is 0.05 grams of alcohol per 100 millilitres of blood (or the equivalent concentration in breath). Unlike a DUI, this offence does not require any evidence of impairment — the reading alone is sufficient.

Where a breath or blood test is taken within three hours of driving and confirms the PCA was present at the relevant time, the offence is established under sections 49(1)(f) and 49(1)(g) respectively. These are the evidential forms of the same offence, and in practice are the most common way PCA charges are prosecuted.

 

Section 49(1)(ba) makes it an offence to drive, or be in charge of a motor vehicle, while impaired by a drug. This is similar to the DUI offence but applies to drugs only. Impairment must be demonstrated — typically through a drug impairment assessment carried out by a trained Police officer, combined with evidence of the driver’s appearance and behaviour.

It is more common for Police to charge a driver with XPCD instead, as there is no requirement for impairment to be established.

 

Section 49(1)(bb) creates a separate offence of driving while a prescribed concentration of a drug is present in a person’s blood or oral fluid. The mere presence of a prescribed illicit drug — such as THC in cannabis, methamphetamine, or MDMA — at or above the prescribed concentration is sufficient.

The evidential versions of this offence, where a laboratory analysis of an oral fluid or blood sample confirms the presence of the drug, are found in sections 49(1)(h) and 49(1)(i).

A recent amendment to the legislation (which came into effect in March 2025) has made some concessions with respect to licence loss for drivers who fail their oral fluid tests if they have a valid medical prescription for THC. However, having a prescription does not provide a defence to the offence itself.

 

Sections 49(1)(bc) and 49(1)(j) create a combined offence for drivers found to have **both** the prescribed concentration of alcohol and a prescribed illicit drug present simultaneously. This is treated as a more serious category of offending, attracting higher maximum penalties than either the alcohol or drug offence alone.

 

Unlike some other drink and drug driving offences, DUI proceedings can only be commenced by court summons — an infringement notice cannot be issued for this charge, even for a first offence. The same applies to Drug Impaired (s.49(1)(ba)) and Combined alcohol and drug offences (s.49(1)(bc)).

By contrast, XPCA and XPCD offences may in some circumstances be dealt with by infringement notice rather than court proceedings. For XPCA, an infringement notice can only be issued where the BAC recorded is below 0.15 and it is the driver’s first offence. For XPCD, an infringement notice is available for first offenders only. In either case, a second or subsequent offence must be dealt with by court.

Where a matter does proceed to court — whether because of the nature of the charge, the BAC reading, or a prior history — early legal advice is important.

The Act contains several statutory presumptions and definitions that are broader than many people expect.

 

If it is established that a person had a certain BAC (or presence of illicit drug) within 3 hours of driving a motor vehicle, it will be presumed (until the contrary is proved) that not less than that BAC was present at the time the offence was alleged to have been committed.

In other words, the Act allows for the presumption that the reading obtained at the time of testing reflects what was present in the driver’s system at the time they were behind the wheel, even if they consumed alcohol or took illicit drugs hours later. This presumption can be rebutted with sworn evidence which is corroborated by the evidence of another person.

 

All of the offences in section 49 apply to a person who is either *driving* or *in charge of* a motor vehicle. These terms have specific meanings under the Act, and they are broader than many people expect.

“In charge” is defined by section 3AA, which provides a non-exhaustive list of circumstances in which a person is taken to be in charge of a vehicle. These include:

– a person who is attempting to start or drive the vehicle;

– a person where there are reasonable grounds to believe they intend to start or drive it;

– a commercial driving instructor while their student is driving; and

– a supervising driver (such as an accompanying licence holder with a learner driver) while the learner is driving.

The practical effect of this is significant. A person who is sitting in the driver’s seat, has the keys, and has consumed alcohol may be found to be “in charge” even if the engine has never been started — if there are reasonable grounds to believe they intended to drive.

“Driving” is addressed by section 3AB. Beyond the obvious case of physically operating a vehicle, the section also provides that a person steering a vehicle that is being towed by another motor vehicle is taken to be driving it — even if they have no control over its propulsion.

The section also extends to automated vehicles — where a vehicle is operating in automated mode, the ADS permit holder is taken to be driving it, and a vehicle supervisor is taken to be driving it whenever it operates outside of automated mode.

 

There are some offences covered in the Road Safety Act that only trigger when they happen on a ‘highway’, but this is not the case for offences including alcohol and other drugs. This means that the offence can even occur in a car park or on private property, including a driveway.

 

The penalties for drink driving and drug driving offences in Victoria escalate significantly with successive convictions. What constitutes a “subsequent offence” is defined broadly under section 48(2) of the Act — a prior conviction for *any* offence under section 49(1), whether for alcohol, drugs, or a combination, counts as a prior offence. This includes infringement notices for drink or drug driving offences that have taken effect as convictions,[^4] as well as prior convictions for refusing to undergo a breath or oral fluid test.

The table below sets out the maximum penalties for each offence — courts retain a wide discretion in sentencing, and most first offenders will not receive the maximum. However, the escalation between first and subsequent offences is substantial, and prior convictions — even older ones — can significantly affect the outcome.

Offence	First Offence	Second Offence	Subsequent Offence
DUI — s.49(1)(a)	25 PU or 3 months imprisonment	120 PU or 12 months imprisonment	180 PU or 18 months imprisonment
XPCA — s.49(1)(b), (f), (g)	20 PU	60 PU or 6 months imprisonment / 120 PU or 12 months imprisonment	120 PU or 12 months imprisonment / 180 PU or 18 months imprisonment
Drug impaired — s.49(1)(ba)	12 PU	120 PU or 12 months imprisonment	180 PU or 18 months imprisonment
XPCD — s.49(1)(bb), (h), (i)	12 PU	60 PU	120 PU
Combined alcohol and drugs — s.49(1)(bc), (j)	30 PU	90 PU or 6 months imprisonment / 180 PU or 12 months imprisonment	180 PU or 12 months imprisonment / 270 PU or 18 months imprisonment

A finding of guilt for any drink driving or drug driving offence under section 49 carries mandatory licence cancellation and disqualification. This means that the court has no discretion as to whether to cancel your licence — it must do so. The court retains discretion over the length of the disqualification, provided it is not less than the statutory minimum.

For DUI and drug-related offences, the minimum disqualification period is fixed regardless of the reading. For alcohol offences, the minimum period scales upward with the concentration of alcohol recorded — the higher the BAC, the longer the mandatory minimum.

The tables below set out the minimum disqualification periods for each offence type. It is important to note that these are floors, not ceilings — a court may, and often does, impose a longer period depending on the circumstances. Any period of immediate licence suspension already served prior to conviction will be deducted from the disqualification period ultimately imposed by the court.

Table 1 — Minimum Disqualification Periods (Flat Minimums)

Offence	First Offence	Subsequent Offence
DUI — s.49(1)(a)	2 years	4 years
Drug impaired — s.49(1)(ba)	12 months	2 years
XPCD — s.49(1)(bb), (h), (i)	6 months	12 months

Table 2 — Minimum Disqualification Periods for XPCA Offences (s.49(1)(b), (f), (g)) — Schedule 1

BAC Reading	First Offence	Subsequent Offence
Less than 0.05	3 months	12 months
0.05 – less than 0.10	6 months	12–18 months
0.10 – less than 0.15	10–14 months	20–28 months
0.15 – less than 0.20	15–19 months	30–38 months
0.20 or more	20–24 months	40–48 months

Table 3 — Minimum Disqualification Periods for Combined Alcohol and Drug Offences (s.49(1)(bc), (j)) — Schedule 1AB

BAC Reading	First Offence	Subsequent Offence
Less than 0.07	12 months	24 months
0.07 – less than 0.10	12 months	26–30 months
0.10 – less than 0.15	16–20 months	32–40 months
0.15 – less than 0.20	21–25 months	42–50 months
0.20 or more	26–30 months	52–60 months

These are minimum periods only. Courts have a discretion to impose a longer disqualification period. Any period of immediate licence suspension served prior to conviction is deducted from the disqualification period imposed by the court (s.50(2)).

For XPCD offences involving a prescribed legal medicinal cannabis product, disqualification is discretionary rather than mandatory on a first offence (s.50(1F)).

Being charged with drink or drug driving can also result in the immediate impoundment of your vehicle by Police.

Under Part 6A of the Act, Police have the power to seize and impound a vehicle for a period of 30 days where they have reasonable grounds to believe it was used in the commission of a relevant offence.

The costs of towing, storage, and release of the vehicle are borne by the driver, and can be substantial — frequently exceeding $1,000.

Where a vehicle has been impounded, there are two avenues for early release.

First, within 48 hours of impoundment the impounding officer must notify a senior Police officer, who is required to review whether there were reasonable grounds for the impoundment. If the senior officer is not satisfied, the vehicle must be returned at the Crown’s cost.

Second, any person whose interests are substantially affected by the impoundment may apply to the Magistrates’ Court under section 84O for an order that the vehicle be released early on the grounds of exceptional hardship. The application requires 7 days’ written notice to the Chief Commissioner of Police. The Court’s discretion is constrained — hardship to the offender cannot be considered if they are already disqualified for a period longer than the impoundment, and employment-related hardship will only be considered where driving the vehicle is essential (not merely convenient) for the offender’s employment, no other transport is available, and they cannot arrange for another person to drive them.

 

Once a person’s licence is cancelled for a drink driving or drug driving offence, there are a number of steps that must be completed before VicRoads will reissue the licence.

 

The first step for all drink and drug driving offenders is to complete a Behaviour Change Program delivered by an approved provider through VicRoads. This program is designed to help participants identify the trigger for their offence and develop strategies to reduce risks to themselves and others when driving. For those who have previously committed an offence of this type, an Intensive Drink and Drug Driver Program must be completed instead. These programs should be booked with VicRoads well in advance, as wait-lists can extend for several weeks or months.

 

For drink-driving offences — including refusing to comply with a preliminary or evidentiary breath test — an approved alcohol interlock device must be installed in the vehicle. The interlock prevents the vehicle from starting if the driver has been drinking, and records any attempts to drive with alcohol present. The requirement is prescribed by legislation and administered by VicRoads.

Once the disqualification period ends and the licence is reissued, the driver must complete the Alcohol Interlock Program before the interlock can be removed. VicRoads mandates a minimum interlock period ranging from 6 months to 4 years, depending on the offence and prior history. Failing to install or maintain the interlock — or any unauthorised removal — may result in suspension or cancellation of the licence as well as further charges.

 

For drug-driving offences — including refusing to be tested for drugs — a Licence Eligibility Order (LEO) must be obtained from the Magistrates’ Court before a licence can be reissued. The hearing must be booked with the Court, where a Judicial Officer will determine whether to grant or refuse the order. A LEO is not required for drink-driving offences unless the matter involved a serious motor vehicle offence such as culpable driving, dangerous driving causing death or serious injury, or a motor vehicle theft where alcohol or drugs were involved.

 

Once the cancellation period has ended and all applicable requirements have been met, an application can be made to VicRoads for the licence to be reissued. The reissued licence will carry conditions reflecting ongoing obligations — an ‘I’ condition (interlock) for drink-driving offences, or a ‘Z’ condition (zero BAC) for drug-driving offences, in addition to any other conditions previously on the licence.

The Z condition requires the driver to maintain a BAC of zero and return a clear oral fluid test at all times while driving, for a minimum of 3 years.

 

As mentioned earlier, the manner of driving is what is important when considering a DUI charge over XPCA/XPCD charges; so evidence that supports very limited driving or ordinary and conventional operation of a motor vehicle may be used to challenge a DUI charge. However, if the BAC reading is very high, it will be more difficult do so successfully even if the manner of driving was not an issue.

When it comes to the BAC reading, blood test result, or the detection of an illicit drug in an oral fluid test, the evidence is typically supported by scientific data from the Victorian Institute of Forensic Medicine. This can make it difficult to successfully challenge a positive result, and will often require the underlying data to be subpoenaed and reviewed by an independent forensic expert.

If the driver relies on instrument error (such as when the breath-testing analyser reports faults), the onus is on the defendant to establish the error on the balance of probabilities.[^2] An instrument fault alone may not be sufficient — the defendant must establish that the fault actually affected the result.

The involuntary consumption of alcohol or drugs is not a defence to drink driving or drug driving offences. Duress — where the accused was compelled to drive against their will — may however be available in appropriate circumstances.

Finally, Police are required to make a formal requirement (or ‘demand’) of a driver under the Road Safety Act. Where that requirement was not made correctly, or the prescribed procedures were not followed, a defence may be available. A careful review of the evidence is required to assess whether this has occurred.

Drink and drug driving charges in Victoria carry serious consequences — from criminal convictions and licence loss to impoundment and imprisonment. The law is technical, the penalties are severe, and the process of getting your licence back can be lengthy. If you have been charged with a drink or drug driving offence, or have received a notice to appear in court, obtaining early legal advice can make a real difference to the outcome of your matter.

1. R v Burnside [1962] VR 96.
2. Luff v DPP [2003] VSCA 81.
3. Crimes Act 1958 (Vic) s 318.
4. Under section 89A of the Road Safety Act 1986 (Vic), a traffic infringement notice issued in respect of a drink or drug driving offence takes effect as a conviction 28 days after the date of the notice, unless the person objects within that period and elects to have the matter dealt with by a court.