s49(1)(a) DUI (Driving Under the Influence)

DUI

DUI or driving under the influence is probably one of the most misunderstood terms when it comes to drink driving. Often people charged with drink driving will search for DUI thinking this is the same offence. It is not. DUI is more serious than standard drink driving. On a first offence for DUI it is open to the court to impose a gaol sentence whereas on a first offence for a standard drink driving charge, it is not open to the court to impose a gaol sentence.

Dribbin & Brown’s DUI Lawyers regularly represent clients charged with Driving Under the Influence offences. We have offices in Dandenong, Geelong, Melbourne CBD, Ringwood, Ballarat, Frankston Moorabbin and Werribee. Our lawyers regularly appear at the magistrates courts closest to our office, consequently we are familiar with the Courts, the court staff and prosecutors. This gives our firm a great advantage in relation to representing clients charged with DUI offences.

What is DUI or driving under the influence?

DUI means, driving under the influence of either drugs or alcohol to the extent that the driver cannot maintain proper control of the motor vehicle.

There are a number of issues to consider if you have been charged with this offence.

• Have the prosecution established the relevant elements of the charge
• Did you drive while under the influence of any drug?
• Were you in charge of a motor vehicle?
• As a result of the alcohol or drugs could you not exhibit proper control of the motor vehicle?
• Do you have prior history for committing similar offences in the past?

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 intoxicating liquor or any drug to an extent that it renders the persons in charge of the vehicle incapable of having proper control of the motor vehicle. S49(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 relevant to the charge of DUI, click on the link, the sections relevant to DUI have been highlighted.

Please read below for more information relating to this charge.

The offence

Section 49(1)(a) of the Road Safety Act 1986.

The prosecution must that:

1. The defendant was driving or in charge of a motor vehicle
2. The defendant was incapable of controlling the motor vehicle due to the presence of alcohol or drugs.

The penalty

If found guilty of a DUI offence the maximum penalties are –

1. For a first offence, a fine of 25 penalty units and 3 months imprisonment.
2. For a second offence, a fine of 120 penalty units and imprisonment for a term of 12 months.
3. For a third or subsequent offence, a fine of 180 penalty units and imprisonment for a term of 18 months.

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.

It should be noted that it is often the case that you will be charged with other lesser offences relating to drink driving, by seeking advice from an experienced traffic lawyer it may be possible to reduce both your time off the road and the ultimate penalty you receive at court by resolving your case to those lesser drink driving charges.

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 in determined by VicRoads.

Where will my case be heard?

DUI cases will be heard will be heard in the Magistrates Court.

Questions to consider

• Do you have a defence?
• Had it been longer than three hours since you last drove a motor vehicle?
• If you are pleading guilty, what can you do to minimise your sentence?

What to do next?

Now is the time to make sure that you have a traffic lawyer who can give you sound advice; help you prepare your evidence and discuss what is to be addressed in the matter.

Preparation is critical to good outcomes, so ensure that you prepare appropriately by seeking quality legal advice.

If you have been charged with a DUI and if your driver’s licence is important to you, don’t go to court unrepresented. Consider how much it will cost you to be disqualified from driving for 2 years or longer. If you have previously committed an offence of driving under the influence of drugs or alcohol the penalties will be more severe, you may receive a term of imprisonment. It maybe the case that if you have to plead guilty a lesser charge can be negotiated.

For the purposes of disqualification, section 50AA of the RSA deems driving offences for which you were convicted over 10 years ago not to be a prior offence. However, it is still at a Magistrates’ discretion to disqualify you from driving for longer than the mandatory 2 year minimum. Understanding the bench is important when resolving any matter relating to DUI.

The police and the courts take driving offences very seriously to avoid severe penalties you need to be represented; Dribbin & Brown Criminal Lawyers are experienced in handling these types of matters. We regularly appear in court to represent people charged with driving offences. 

The Reduced Legislation

Section 49 Offences involving alcohol or other drugs

(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; or

(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.