In Victoria, driving with a blood alcohol concentration (BAC) above the legal limit is a serious offence. Penalties for drink driving include licence disqualification, fines, a criminal record, and imprisonment in more severe cases. Drink driving offences are prosecuted under the Road Safety Act 1986.
If you have been charged with drink driving, you need the support of a specialist criminal defence lawyer. Minimum licence disqualification periods can be exceeded, vehicles can be impounded, and those who are repeat offenders, those facing multiple charges or charges including Driving Under the Influence (DUI) can go to jail.
This article aims to unpack the legal consequences of drink driving within Victoria and provide clarity on when jail time becomes likely.
Understanding Drink Driving Offences
Under the Road Safety Act 1986 (Vic) and the associated Road Safety (Drivers) Regulations 2019 (Vic), drink driving offences are determined primarily by the blood alcohol concentration (BAC) found in the driver at the time of the offence.
To prosecute a driver for drink driving, the police must prove a driver drove their motor vehicle while ‘exceeding the prescribed concentration of alcohol‘ (PCA). The legal limit for fully licensed drivers over the age of 26 in Victoria is under 0.05 grams of alcohol in every 100 millilitres of blood. For learners and provisional licensees, as well as professional drivers, the prescribed concentration of alcohol is 0.00%. However, if the driver was incapable of having proper control of the vehicle due to the presence of drugs or alcohol, they may face more serious charges for ‘driving under the influence‘ (DUI).
The penalties for drink-driving vary depending on:
- the type of offence committed
- when the offence was committed
- your age at the time of the offence
- the licence or permit you held at the time
- whether you were incapable of having proper control of the vehicle due to the presence of drugs or alcohol
- if you have previously been convicted for drink driving.
Risk of imprisonment for drink driving
Penalties for drink driving vary significantly based on the BAC level, the driver’s licensing status, and prior offences. For low range drink driving offences, penalties typically include fines and licence suspension, rather than imprisonment. However, if the offence involves aggravating factors such as a collision causing property damage, injury or driving while unlicensed, the likelihood of imprisonment increases.
Driving while exceeding the prescribed limit
The courts may impose imprisonment for up to 6 months for repeat drink driving offences (with a BAC of less than 0.15) caught for a second drink driving offence, and 12 months for a subsequent offence (s49(2A)(b)). Drink driving offences with a BAC of 0.15 and above carry more severe penalties, with repeat drink driving offences attracting a maximum penalty of 12 months for a second offence and 18 months for subsequent offences.
Those involved in serious accidents while under the influence could face even harsher sentences, including longer terms of imprisonment.
Driving under the influence
If the driver was incapable of having proper control of the vehicle due to the presence of drugs or alcohol, they may face more serious penalties for ‘driving under the influence‘ (DUI) under section 49(1)(a) of the Road Safety Act 1966.
For this offence, the courts may impose imprisonment for:
- up to 3 months for a first offence;
- 12 months for a second offence; and
- 18 months for a third or subsequent offence (s49(2)).
Further, pursuant to section 50(1B) of the Road Safety Act, if a person is convicted or found guilty of an offence against section 49(1)(a) for Driving Under the Influence, the court must disqualify that person’s driver’s licence or learner’s permit for a minimum period of:
- 2 years for a first offence.
- 4 years for any subsequent offence.
If found to be driving under the influence of alcohol or other drugs, you may be required to undergo a behavioural change program. VicRoads determines participation in these programs.
With the advice and guidance from an experienced driving offence lawyer, it may be possible to minimise your time off the road and other penalties by negotiating with the prosecution to reduce the charges to less serious drink driving charges, such as driving while exceeding the prescribed limit.
Combined Alcohol and Drug Offences
Victoria Police can drug test drivers who are under the influence of alcohol. If you’re over the prescribed alcohol limit and test positive for drugs, you may be charged with a combined drug and alcohol offence under s49(1)(bc) of the Road Safety Act 1966. The penalties for combined offences are typically higher than those for individual alcohol or drug-related charges and are more likely to result in imprisonment.
The maximum penalties for driving while both exceeding the prescribed limit of alcohol and drugs are:
- A fine of 30 penalty units for a first offence;
- For a second offence, a fine of 90 penalty units or imprisonment for a term of 6 months where the concentration is less than 0.15 applies. Where the concentration is 0.15 or greater, a fine of 180 penalty units or imprisonment for a term of 12 months applies.
- For a third or subsequent offence, a fine of 180 penalty units or imprisonment for a term of 12 months applies where concentration is less than 0.15. Where the concentration is 0.15 or more, a fine of 270 penalty units or 18 months imprisonment applies.
Further, pursuant to section 50(1AD) of the Road Safety Act 1966, if a person is convicted or found guilty of an offence against section 49(1)(bc), the court must cancel your driving licence or learner permit and disqualify you from driving for a minimum period set out in Schedule 1AB of the Road Safety Act (RSA). The period of disqualification will be established based on the concentration of alcohol in blood in grams per 100 millilitres of blood or in breath in grams per 210 litres of exhaled air.
The court must cancel that person’s driver licence or learner permit, and disqualify them from driving for a minimum period of:
- 12-30 months for a first offence (dependent on BAC).
- 24-60 months for any subsequent offence (dependent on BAC).
If found to be driving under the influence of alcohol or other drugs, you may be required to undergo a behavioural change program. Participation in these programs is determined by VicRoads.
Other penalties for drink driving
In addition to imprisonment, penalties for drink driving can also include significant fines, mandatory alcohol education programs, vehicle impoundment, and cancellation of the driver’s licence. The court may also require the installation of an alcohol interlock device on the vehicle of a person convicted of drink driving, which prevents the vehicle from starting if alcohol is detected in the driver’s breath.
Losing your licence for drink driving
In most drink driving cases, the Magistrate must cancel your driver’s licence and disqualify them from driving for a minimum period of time. To visit the current legislation, refer to Schedule 1 and 1AB of the Road Safety Act 1986 (Vic).
For P plate drivers and taxi drivers, who are required to drive with a BAC of zero, a BAC recording of less than 0.05 means that a Magistrate must cancel your licence and disqualify you from driving for at least 3 months. Fully licenced drivers caught drink driving with a BAC under 0.07 face a minimum licence disqualification period of 3 months.
For a BAC reading of 0.70 or more, the following minimum licence disqualification periods apply:
- 6 months if BAC 0.05 or more but less than 0.10
- 10 months if BAC 0.10 or more but less than 0.11
- 11 months if BAC 0.11 or more but less than 0.12
- 12 months if BAC 0.12 or more but less than 0.13
- 13 months if BAC 0.13 or more but less than 0.14
- 14 months if BAC 0.14 or more but less than 0.15
- 15 months if BAC 0.15 or more but less than 0.16
- 16 months if BAC 0.16 or more but less than 0.17
- 17 months if BAC 0.17 or more but less than 0.18
- 18 months if BAC 0.18 or more but less than 0.19
- 19 months if BAC 0.19 or more but less than 0.20
- 20 months if BAC 0.20 or more but less than 0.21
- 21 months if BAC 0.21 or more but less than 0.22
- 22 months if BAC 0.22 or more but less than 0.23
- 23 months if BAC 0.23 or more but less than 0.24
- 24 months if BAC 0.24 or more.
The minimum disqualification period is double for those charged with a second offence in 10 years. So, a second offence with a BAC of 0.05 or more will result in a minimum disqualification of 12 months. A second BAC offence of 0.11, will be 20 months, and so forth. The minimum licence disqualification periods can be extended by a Magistrate, but they cannot be reduced.
If a license holder has a full license and is 26 years or older, and the BAC offence is less than 0.07, a Traffic Infringement Notice will be served, and the period of disqualification is 3 months. For offences where the BAC is 0.07 and above, or where a 2nd or subsequent offence, the matter will be heard at Court.
Importantly, an infringement notice for a 0.05 BAC to 0.069 BAC for first time drink driving with an open licence will initially attract a disqualification period of 3 months. If that infringement notice is challenged and results in a finding of guilt in court, the minimum period of disqualification that a magistrate can then impose is double, being 6 months. The point here is to be very very careful before you challenge a drink driving infringement notice, as you could end up with double the minimum period off the road. Our advice….make an appointment with one of our experienced drink driving lawyers prior to contesting one of these infringements, it could save you an extra 3 months off the road.
Getting Your Licence Back
When your disqualification ends, you can apply to have your driver licence reissued. You’ll be issued a probationary licence, which you must hold for at least 1 year. You may need to complete a short online drink driving course or the repeat drink driving course.
Drink driving education programs
Participation in a drink-driving education program may be available to reduce the penalties associated with a drink driving offence. Eligibility and availability may vary, so it’s best to consult with a legal professional for guidance specific to your situation.
Why legal representation is important
Drink driving is taken very seriously by the courts, and penalties can be severe, especially for those with previous offences. In cases where an individual has prior convictions for driving under the influence or drug-related driving offences, the likelihood of harsher penalties, including imprisonment, increases significantly. However, competent legal representation can often result in lesser charges or more favourable outcomes, even when a guilty plea is necessary.
According to Section 50AA of the Road Safety Act (RSA), driving offences older than 10 years are not counted as prior offences for the purpose of disqualification. Nevertheless, the discretion still lies with the magistrate to extend the mandatory minimum disqualification of two years if necessary. A thorough understanding of these matters and legal precedents is crucial in these situations.
It’s also worth noting that penalties can extend beyond the legal consequences. The social, professional, and psychological impacts of a drink driving conviction can be profound and long-lasting. Employment opportunities, especially those requiring driving, can be severely restricted. The stigma associated with a criminal record, particularly for a serious offence like drink driving, can affect personal and professional relationships and opportunities.
Seeking Help and Support
It is always recommended to consult with a qualified lawyer for personalised advice related to a drink driving case. Don’t risk your future by making uninformed decisions.
The potential costs of going to court unrepresented can be substantial. Quality legal advice and representation are paramount to manage and potentially mitigate these consequences effectively. Engaging a legal professional who specialises in drink driving cases can provide you with the strategic defence needed to protect your rights and your future.
Our specialist criminal lawyers at Dribbin & Brown Criminal Lawyers are well-versed in drink driving cases. We bring a wealth of experience to the courtroom, regularly advocating for clients charged with driving offences. This level of representation is invaluable in ensuring the best possible outcome and can significantly affect the severity of the penalties imposed.
Michael has been a Criminal Defence Lawyer since 2007 and is one of the founding partners of Dribbin & Brown Criminal Lawyers. He has been a criminal law specialist (accredited by the Law Institute of Victoria), since 2012 and has a broad depth of experience in criminal law, traffic law and intervention order law.
