Drinking While Driving Laws
- It is illegal to drink while driving in Victoria. The relevant section is found in the Road Safety Act 1986 (RSA) section 49B which states to drink alcohol while driving or in charge of a motor vehicle is an offence. The maximum penalty is 10 penalty units and no mandatory disqualification period applies.
- This has not always been the case, previously it was legal to drink alcohol whilst driving as long as you were not over the prescribed limit. But now with the introduction of s49B, the old concept of the “traveller” – that is, drinking a beer on the way home on a Friday afternoon is now a thing of the past. So you know cannot drink alcohol while driving or being in control of a motor vehicle. This includes if you are supervising a learner, see here for more information on drinking whilst supervising a learner.
What is the penalty for having open alcohol in car Victoria?
- There is no penalty for having open alcohol in a motor vehicle in Victoria, provided you are not driving, in control of the vehicle, or a supervising driver. You may consume alcohol before supervising a learner driver, but your BAC (Blood Alcohol Concentration) must remain under 0.05% while supervising.
- In summary, open alcohol can be present in a vehicle as long as you are not driving or supervising a learner driver.
What must the prosecution prove:
The police must demonstrate that the person driving or in control of a motor vehicle was drinking intoxicating liquor. To do so, they may need to observe the driver consuming alcohol or notice an open container in the vehicle during a stop.
- Police may request the driver to undertake a preliminary breath test. They are required to wait 15 minutes before conducting the test to allow residual alcohol to dissipate and ensure an accurate result.
- If the driver’s reading is below the PCA (Prescribed Concentration of Alcohol) limit, this may support a charge for consuming liquor while driving. If the reading is at or above the PCA, the driver may face additional drink-driving charges.
Please read below for more information relating to this charge.
The good news in relation to this offence is that it is one of the few drink driving charges that do not attract mandatory licence loss.
The offence:
Subsection 49B of the Road Safety Act 1986.
The prosecution must that:
- The defendant was driving or in charge of a motor vehicle; and
- The defendant was drinking intoxicating liquor.
The maximum fine for drinking while driving:
- If found guilty of drink while driving the maximum penalty is 10 penalty units. Different penalties apply if the driver is found to be above the prescribed content of alcohol relevant to their licence condition.
- While licence suspension or disqualification is not mandatory for an offence against s 49B, the court has a general discretion to suspend or cancel a driver’s licence pursuant to section 28 of the RSA.
Where will my case be heard?
Consuming intoxicating liquor while driving cases will be heard will be heard in the Magistrates Court or be dealth with by way of infringement notice.
Questions to consider
- Do you have a defence?
- Did you have an open container of alcohol in the car when pulled over by the police? If so were you driving or in control of a motor vehicle?
- If you are pleading guilty, what can you do to minimise your sentence?
- Do you have prior matters for drink driving?
What to do next?
Get a lawyer. Although you cannot go to gaol for this offence, you can lose your licence if the magistrate decides to exercise their discretion in favour of licence loss, that is why retaining a lawyer is important to ensure that a magistrate finds in your favour.
You should always consider how much it will cost you to be disqualified from driving for a period of months or years if the case does not go well for you.
The police and the courts take driving offences very seriously to avoid severe penalties such as loss of license you need to be represented; Dribbin & Brown drink driving Lawyers are experienced in handling these types of matters. We regularly appear in court to represent people charged with drink driving offences.
The Legislation
Section 49B Offence to consume intoxicating liquor while driving
(1) A person must not consume intoxicating liquor while the person is driving a motor vehicle or is in charge of a motor vehicle.
Penalty: 10 penalty units.
(2) For the purposes of subsection (1) a person is not taken to be in charge of a motor vehicle unless that person is a person to whom section 3AA(1)(a), (b) or (c) applies.
