Drink Driving in Victoria

Drink driving offences are some of the most common traffic offences in Melbourne. There are a number of drink driving related offences with various penalties, dependent on the offence. This article will explain to you the different drink driving offences, as well as key information on what to expect. We recommend that you contact Nardi Lawyers if you face any of the drink driving related offences detailed in this article.

Introduction

Fully licenced drivers must have a Blood Alcohol Content (BAC) of less than .05 when operating a vehicle. Furnishing a breath test or blood test sample which indicates a BAC of .05 or more will lead to a drink driving charge.

The following drivers must have a zero BAC when operating a vehicle:

• Professional Drivers such as truck, bus, taxi and Uber drivers;
• Learner Drivers;
• Probationary Drivers (P1 and P2); and
• Individuals who have committed a drink driving offence previously.

Licence suspension/disqualification periods for subsequent offences (prior drink driving offence within 10 years) are double than that of a first offence.

Drink driving offences carry minimum mandatory licence suspension/cancellation periods, even if you choose for your matter to be heard in court.

Drink Driving Offences

The following are all drink driving related offences in Victoria:

• Exceeding the Prescribed Concentration of Alcohol (BAC of .05 or above for fully licenced drivers);
• Exceeding the Prescribed Concentration of Alcohol when accompanying a learner driver.
• Failure to stop at a testing station (e.g., booze bus); and
• Refusing a breath test.

Exceeding the Prescribed Concentration of Alcohol

Furnishing a breath test or blood test sample which exceeds the Prescribed Concentration of Alcohol (PCA) will result in a drink driving charge. This includes exceeding the PCA when accompanying a learner driver.

In most circumstances, individuals who exceed the PCA will be charged with two separate offences under the Road Safety Act 1986:

• Exceed the Prescribed Concentration of Alcohol – Section 49(1)(b); and
• Exceed the Prescribed Concentration of Alcohol within 3 hours of driving or being in charge of a motor vehicle – Section 49(1)(f).

Both charges result in the same penalty, and in most circumstances, only one of those charges will proceed.

Police officers can lawfully request for you to provide a breath test sample within 3 hours of driving or being in charge of a motor vehicle. The Prosecution must prove that the sample is due solely to alcohol consumed prior to driving or being in charge of a motor vehicle. If you have furnished a sample exceeding the PCA due to alcohol consumed after driving, we highly recommend you call our office to discuss your options.

If you exceed the PCA, you may be issued with an Infringement Notice. These are only issued for first offences. The police officers can choose to either issue you with an infringement notice or put your matter straight into court. If your BAC was .15 or above, your matter will go straight to court. If you choose to put your matter into court, your licence will not be suspended or cancelled until your matter has concluded.

You may also be issued with an immediate suspension of your licence (section 85 notice). If your licence is suspended well in advance of your court hearing, any time off the road served waiting for your court hearing will count towards the minimum mandatory suspension period imposed by the court.

Please be aware that if you receive an infringement notice for a drink driving offence where your BAC is between .05 and .07 and choose to have it heard in court and you plead guilty, your minimum mandatory licence cancellation period will be 6 months. If you choose to accept the Infringement Notice, your licence will be suspended for 3 months.

The penalties for different drink driving ranges are found in the table below:

Failure to stop at a testing station and refusing a breath test

It is an offence under the Road Safety Act 1986 section 49(1)(c) and (e) to refuse a breath test or failing to stop at a testing station, such as booze buses.

Refusing a roadside preliminary breath test or refusing to accompany a police officer to a police station for an evidentiary breath test are both offences.

Being found guilty of these offences results in a 2 year licence minimum mandatory cancellation for a first offence and 4 years for a subsequent offence.

Losing your licence and getting it back

If you accept an infringement notice or plead guilty to drink driving, you will receive either a suspension or cancellation of your driver’s licence. 

If your minimum mandatory penalty is 6-months or more, your driver’s licence will be automatically cancelled.

The key differences between a suspension of your licence and a cancellation of your licence are as follows:

Suspension: Once your suspension period is over, your licence becomes valid again and you are able to immediately begin driving.

Cancellation: Once your cancellation period is over, you cannot immediately begin driving again. You must contact VicRoads to reapply to get your licence back.

If your driver’s licence has been cancelled, VicRoads may require you to do certain things in order to get your licence back, which include:

• Having an interlock condition imposed;
• Complete driver education programs;
• Complete alcohol abuse assessments or programs; and/or
• Have a zero BAC condition imposed on your licence for at least 3 years.

Please note, in Victoria, there are no conditional licences. This means that if you plead guilty to drink driving and have received a licence suspension or cancellation, you cannot have special conditions which allow you to drive for specific purposes, such as driving to work or taking your children to school. This is a common misconception. Your licence must be totally suspended or cancelled for the minimum mandatory period for your specific offence.