Driving under the influence (DUI) is one of the most serious traffic offences under Victoria’s Road Safety Act 1986. This article explores the DUI meaning under Victorian law, the penalties for driving under the influence of alcohol or drugs, and how a DUI lawyer can help you navigate these serious charges.
DUI meaning in Victoria
In Victoria, driving under the influence is defined under section 49(1)(a) of the Road Safety Act 1986. This section makes it an offence to drive or be in control of a vehicle while under the influence of alcohol or drugs to the extent that the person is incapable of having proper control of the vehicle.
A conviction for DUI can lead to serious penalties, including license disqualification, fines, and imprisonment, with penalties escalating for repeat offenders. If you’re facing a DUI charge under section 49(1)(a), contact an experienced DUI lawyer who can offer expert advice, help prepare evidence, and guide your case effectively.
What is the difference between driving under the influence of alcohol and exceeding the legal BAC limit?
The term DUI is often misunderstood in relation to drink driving offences. Many people charged with drink driving mistakenly confuse DUI with driving while exceeding the legal BAC limit, however, there are several important differences:
- DUI is a distinct and more serious offence that involves driving under the influence of alcohol or drugs.
- For a first DUI offence, the court has the discretion to impose a gaol sentence, whereas gaol is not an option for a first offence for exceeding the legal BAC limit.
- A DUI charge indicates that the driver was so affected by alcohol or drugs that they were incapable of controlling the vehicle safely, regardless of their specific blood alcohol concentration (BAC).
- Unlike drink driving, a DUI charge under section 49(1)(a) does not rely on specific BAC reading or drug test. Instead, it focuses on whether the driver’s mental or physical condition due to alcohol or drug consumption prevents them from safely operating a vehicle.
DWI vs DUI
DWI stands for driving while intoxicated or driving while impaired. The term originates from the United States, where it is commonly used to describe driving under the influence of alcohol or drugs. In the U.S., DWI often specifically refers to alcohol impairment, with varying interpretations depending on the state. Some states distinguish DWI from DUI (driving under the influence) based on the level of impairment or the type of substance involved.
In Australia, however, DWI is not commonly used as a formal legal term; instead, offences involving driving under the influence of alcohol or drugs to such an extent as to be incapable of having proper control of the vehicle is typically referred to as DUI. In Victoria, DUI covers both alcohol and drug-related impairment.
Elements of a DUI charge
It is an offence against the Road Safety Act 1986 (RSA) section 49(1)(a) to drive a motor vehicle or be in charge of a motor vehicle while under the influence of alcohol or any drug to the extent that it renders the person in charge of the vehicle incapable of having proper control of the vehicle.
Section 49(1) of the Road Safety Act 1986 is a very large section that applies to all drink driving offences. To more easily find the parts of the section specifically relevant to the charge of DUI, see here with sections relevant to DUI highlighted.
To prove an offence under section 49(1)(a), the prosecution must prove beyond reasonable doubt that:
- the accused drove or was in charge of a motor vehicle;
- the accused had consumed alcohol or any other drugs;
- the accused was incapable of having proper control of the motor vehicle;
- the lack of capability was caused by the alcohol or other drugs.
Incapable of having proper control
To prove that the accused was incapable of having proper control of the vehicle, the prosecution must prove that they failed to meet the standard of an ordinary, reasonably competent driver (R v Ciantar (2006) 16 VR 26 at [21]–[22]). It is important to note that the prosecution must prove that the accused was personally incapable of proper control, not merely that someone with similar levels of alcohol or drugs would likely be incapable.
Lack of capability caused by alcohol or other drugs
To prove a DUI charge under section 49(1)(a), the prosecution may rely on breath test or blood, oral fluid or urine analysis as well as drug assessment to prove that the accused consumed alcohol or another drug causing impairment at the time of driving. Observations by police officers and other witnesses about the accused’s driving are also admissible on the question of whether the vehicle was under the accused’s proper control. Evidence in the form of CCTV may also be considered if relevant.
The prosecution may seek to prove that an individual was incapable of having proper control of the vehicle by relying on their BAC or drug levels, supported by expert evidence on how such levels can impair a person’s ability to drive. In cases involving high BAC or drug concentrations, expert evidence alone may be sufficient to establish beyond reasonable doubt that the individual was incapable of having proper control. However, at lower levels, expert evidence may not meet the required standard of proof without additional supporting evidence.
Driving Under the Influence of Alcohol Presumption
Under section 48(1)(a), there is a statutory presumption that if it is proved that a certain concentration of alcohol was present within 3 hours of an alleged DUI offence (under s49(1)(a)), unless the contrary is proved, at least that amount was present in the accused’s blood or breath at the time the alleged offence occurred. There is no such presumption in relation to drug offences under section 49(1)(a).
DUI penalties
If you are found guilty of a DUI offence, the maximum penalties are:
- For a first offence, a fine of 25 penalty units ($4,939.75) and 3 months imprisonment.
- For a second offence, a fine of 120 penalty units ($23,710.80) and 12 months imprisonment.
- For a third or subsequent offence, a fine of 180 penalty units ($35,566.20) and 18 months imprisonment.
Further, pursuant to section 50(1B) of the Road Safety Act, a person who is convicted or found guilty for DUI, will have their driver’s licence or learner’s permit cancelled, and will be disqualified for minimum period of:
- 2 years for a first offence.
- 4 years for any subsequent offence.
Alcohol interlock and Behaviour Change Program
Victoria’s interlock program requires many DUI offenders to install an alcohol interlock device—a breath-testing device linked to the car’s ignition that prevents it from starting if alcohol is detected—once their disqualification period ends. This device must typically remain installed for a set period, which varies based on the individual’s offence history.
A person found to be driving under the influence of alcohol or other drugs may also be required to undergo a behavioural change program. Participation in these programs is determined by VicRoads.
Police power to seize, impound or immobilise
Interestingly, DUI under section 49(1)(a) of the Road Safety Act 1966 is not defined as a ‘relevant offence’ under section 84C. This means that, unlike other drink driving offences, police do not have the power to seize, impound or immobilise a vehicle for a DUI offence under section 84F.
However, police often lay multiple charges including for exceeding the prescribed concentration of alcohol (PCA) under section 49(1)(b). In such cases, the power to seize, impound or immobilise vehicles is available if the police reasonably believe the vehicle was used in the commission of a drink driving offence for exceeding the PCA.
Multiple Drink Driving and DUI Charges
Police will often lay multiple charges for drink driving offences, including both serious and less offences. Understanding the distinctions between these charges is essential for achieving the best possible outcome in your case.
It is not uncommon for those charged with drink driving to also face lesser charges for exceeding the prescribed concentration of alcohol (PCA) under section 49(1)(b). Skilled representation from an experienced DUI lawyer can help you navigate these charges and potentially resolve your case to a lesser offence, reducing your licence disqualification period and avoiding the risk of imprisonment.
Where a DUI charge is heard
DUI cases in Victoria are heard in the Magistrates’ Court. This is the court responsible for handling summary offences, including charges under section 49(1)(a) of the Road Safety Act 1966.
The Magistrates’ Court plays a critical role in determining penalties for DUI offences, including licence disqualifications, fines, and, in some cases, imprisonment.
Defending a DUI charge
If you have been charged, you may have a DUI defence available. Depending on the circumstances of the case, the accuracy of the testing method, such as the breathalyser or blood test, can sometimes be contested. In other cases, a defence may be available if the police did not have reasonable grounds to stop your vehicle. Your lawyer may also present evidence of unforeseen circumstances or extreme stress to minimise penalties if there were mitigating circumstances. However, the mandatory minimum licence disqualification periods will apply.
What to do if you are facing DUI charges
If you’ve been charged with DUI, don’t face it alone. The consequences can be severe, from fines and licence disqualification to imprisonment and a lasting criminal record. An experienced DUI lawyer can help protect your rights, build a strong defence, and guide you through the legal process. Contact us today for expert advice and representation to secure the best possible outcome for your case.
DUI Legislation
The Road Safety Act 1986
Section 49 – Offences involving alcohol or other drugs (extract)
(1) A person is guilty of an offence if he or she—
(a) drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle
(2) A person who is guilty of an offence under paragraph (a) of subsection (1), other than a supervising driver offence, is liable—
(a) in the case of a first offence, to a fine of not more than 25 penalty units or to imprisonment for a term of not more than 3 months; and
(b) in the case of a second offence, to a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months; and
(c) in the case of any other subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.
(8) If on a prosecution for an offence under paragraph (a) of subsection (1), the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence under paragraph (ba) of that subsection, the court may find the accused guilty of an offence under paragraph (ba) and punish the accused accordingly.
(9) If on a prosecution for an offence under paragraph (ba) of subsection (1), the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence under paragraph (bb) of that subsection, the court may find the accused guilty of an offence under paragraph (bb) and punish the accused accordingly.
