Supervising Drivers & Drinking

Can Supervising Drivers Drink Alcohol?

• In Victoria supervising drivers are not permitted to drink alcohol whilst supervising a learner driver.
• The relevant legislation is found at section 49C of the Road Safety Act and outlines that you cannot consume alcohol whilst supervising a learner driver.

You are a learner driver and have been to a wedding with your parents. You have not drunk any alcohol but your parents have. Can you drive them home?

• Provided they hold a full driver’s licence, have a BAC below 0.05, do not have an interlock condition on their licence, and are not professional driving instructors, either parent can supervise your driving.

Learning to drive is both an exciting and nerve-racking time for parents and adolescents. However, it is important that supervising drivers do not drink whilst instructing, and are not over the limit. 

Who is a Supervising Driver?

• Section 3 of the Road Safety Act 1986 (Vic) defines a supervising driver as a person, other than a commercial driving instructor, who is sitting beside a learner driver. To be a supervising driver the person must hold a full driver’s licence, they cannot be on their P plates. 

When did it become an offence to drink whilst supervising a learner?

• This offence came into force on 14 December 2011. It was inserted into the Road Safety Act by section 4 of the Road Safety Amendment (Drinking while Driving) Act 2011.
• Prior to this insertion, the Road Safety Act only required a person supervising a learner driver to be under the prescribed alcohol limit, which in truth might have made monitoring a learner driver a little less stressful.
• The Second Reading Speech of the Road Safety Amendment (Drinking while Driving) Act 2011 provides that s49C was inserted with the intention to ensure learner drivers receive adequate instruction from supervisors who are not impaired or distracted by alcohol. Additionally, the offence seeks to send a clear message to young people that drink driving is unacceptable.

Penalty for Consuming Alcohol whilst Supervising a Learner Driver

• Consuming alcohol while supervising a learner driver is an offence which carries a maximum penalty of 10 penalty units. That being said, s49C can be dealt with by the issuing of a traffic infringement notice, also known as an on-the-spot fine, the traffic infringement notice carries a fine of two penalty units.

Is there licence loss for Drinking Whilst Supervising a Learner?

• Section 49C does not form part of the section 49 provisions of the Road Safety Act which relate to the main drink and drug driving provisions. Consequentially, liability under s49C does not bring about mandatory licence disqualification, unlike most other drink driving offences. 
• It is true to say that by virtue of s50(6) of the Road Safety Act all mandatory licence disqualification do not apply to a person convicted or found guilty of a supervising offence.
• That said, the discretion under s28 of the Road Safety Act is still enlivened, therefore anyone pleading guilty to this offence should not assume that they will not lose their licence. This is why it is so important to engage expert drink driving lawyers to assist you. It maybe the difference between keeping your licence and losing it.

Can a Driver Drink Alcohol whilst Driving?

• Similarly, section 49B of the Road Safety Act outlines that it is an offence to consume alcohol while driving. This offence was also inserted by the Road Safety Amendment (Drinking while Driving) Act 2011.
• The Second Reading Speech of the Road Safety Amendment (Drinking while Driving) Act 2011 noted that drink driving was a significant contributor to death and trauma on Victorian roads. It added that the offence of drinking whilst driving was introduced to close a loophole in Victoria which allowed people to consume alcohol whilst driving a motor vehicle. It was hoped that doing so would play a part in reducing the potential future damage caused by drink drivers.

Penalty for Consuming Alcohol whilst Driving

Section 49B carries the same penalties as s49C. It has a maximum penalty of 10 penalty units but can be dealt with by a traffic infringement notice which involves a penalty of two penalty units. s49B does not attract mandatory licence disqualification.

To summarise, since December 2011 it has been an offence to consume alcohol whilst driving a car and whilst supervising a learner driver. Liability for these offences holds regardless of the offender’s blood alcohol limit, and both offences can be penalised by the issuing of a traffic infringement notice.

Going to Court?

If you have to attend Court in relation to either a 49B or 49C offence you would be wise to engage an experienced traffic lawyer to assist. On a number of occasions our lawyers have had to direct both the prosecutor and the magistrate on the issue of licence loss. Prosecutors routinely argue that the mandatory licence loss provisions apply which makes us wonder how often mandatory licence loss is imposed on the unrepresented defendant. Don’t get caught out at Court, call Dribbin & Brown Drink Driving  Lawyers.

Where will my case be heard?

If a traffic infringement notice is issued, then that will be the end of the matter, if, however, a person is charged and summonsed to appear in court consuming intoxicating liquor while supervising a learner driver cases will be heard in the Magistrates Court.

Elements of s49C of the RSA

The prosecution must prove that:

1. The defendant was supervising a learner driver; and
2. The defendant was drinking intoxicating liquor.

Subsection 49C of the Road Safety Act 1986

Section 49C Offence to consume intoxicating liquor while supervising a learner driver

A person must not consume intoxicating liquor while the person is a supervising driver.

Penalty:     10 penalty units.