Drink Driving Penalties in Victoria - Important Updates

Drink Driving Penalties in Victoria – Important Updates

January 18, 2018

Drink driving charges can be tricky to navigate, as there are various offences and penalties that fall under the umbrella of ‘drink driving’. New mandatory penalties to be introduced in early 2018 will make Victorian Traffic Law arguably the harshest in Australia. These new laws will introduce penalties that require immediate disqualification of licences, behavioural change program and also the fitting of alcohol interlock devices for drivers found to be over the 0.05 blood alcohol limit (including first time offenders).[1]

Prescribed Concentration of Alcohol Offence

This offence is where you drive with a Blood Alcohol Concentration (BAC) in excess of 0.05.[2] This blood alcohol level is measured through either a sample of exhaled air or blood test.[3] The most common method of analysis is through a roadside ‘breath test’ to measure the level of alcohol in exhaled air. The Police must prove that you:

Operated a motor vehicle; and
Had an excess of the prescribed concentration of alcohol.

It is an offence to refuse to provide a sample breath test or refuse to stop at a testing station.[4]

Current Drink Driving Penalties

Currently, the penalties for driving in excess of 0.05 blood alcohol limit vary, according to what level is recorded on the sample of breath or blood sampled and licence level. Learner (‘L-Plate’), Provisional (‘P-Plate’), Truck Drivers and those with nil alcohol licence conditions are required to have a nil reading. If alcohol is found in the system, you can have your licence cancelled and be disqualified from holding a licence for a period of time.[5] The below table highlights the current minimum penalties imposed for drink driving offences committed on or after 1 October 2014.

Level	Designation	Office
Sub 0.05 offence (L or P Plate, conditional licence only)	Less than 0.05g	Fine Minimum 3 months disqualification Alcohol interlock device installed for 6 months minimum 10 demerit points
Low	0.05-0.069g	If the driver is under 26: Fine Minimum 6 months disqualification Alcohol interlock device installed for 6 months minimum If the driver is over 26: Fine 10 demerit points
Mid	0.07-0.099g	Fine Minimum 6 months disqualification Alcohol interlock device installed for 6 months minimum
High	0.10-0.149g	Fine Minimum 10-14 months disqualification (dependant on reading) Alcohol interlock device installed for 6 months minimum
In Excess of 0.15	0.15g +	Fine Minimum 15-24 months disqualification (dependant on reading) Alcohol interlock device installed for 6 months minimum Term of imprisonment

Note: Harsher penalties are imposed for subsequent offences (within 10 years). [6]

However, new laws to be introduced in early 2018 will provide the following mandatory penalties:

Anyone caught drink driving with BAC in the 0.05 and 0.069 range faces immediate licence cancellation and disqualification for 6 months (12 months for a subsequent offence);
An L or P-Plater driver, or someone with nil alcohol conditions caught driving with a BAC content of less than 0.05 faces automatic disqualification of 3 months (12 months for a subsequent offence);
All drivers caught over the 0.05 blood alcohol limit will be forced to have an alcohol interlock fitted to their cars for 6 months, including first time offenders;
All drink-drivers will also have to complete a new ‘behaviour change program’ before being eligible for a licence.

Are There Any Defences?

There are some avenues to defend your alleged drive with a prescribed concentration of alcohol charge which relate to the accuracy of your BAC reading. Positive roadside BAC tests are always backed-up by a subsequent test at the Police Station. Challenging the accuracy of the BAC reading is possible if there are major discrepancies between the roadside test and that taken at the Police station. Further, under current legislation, if the test was taken more than 3 hours after you operated a vehicle, the test cannot be used as evidence that you were intoxicated at the time of operating a motor vehicle. However, new laws to be introduced in early 2018 extend this time period to 5 hours.

You may also have a defence of a reasonable mistake relating to the charge.

We suggest that you should contact an experienced legal practitioner as soon as possible if you are to be interviewed in relation to this offence so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

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[1] The Transport Legislation Amendment (Road Safety, Rail and Other Matters) Bill 2017 passed Parliament in December 2017. Bill given Royal Assent on the 19^th December 2017. The commencement provisions relating to the new penalties are yet to be proclaimed.
[2] Road Safety Act 1986 (Vic) s 49(1)(b).
[3] Road Safety Act 1986 (Vic) s 3.
[4] Road Safety Act 1986 (Vic) s 49(1)(c).
[5] Road Safety Act 1986 (Vic) s 49(1A).
[6] Road Safety Act 1986 (Vic) s 50AA.

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