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Drunkenness offences – police and court procedures

Police policy and procedure

Arrest and custody

If you are arrested you will be taken into custody at a police station. You will normally only be kept in custody until the police think you are sober enough to leave – usually around four hours.

While you are in custody, police must check on you regularly to make sure you’re okay, and must call for medical help if they think you need it.

Police have legal obligations when they arrest:

  • young people: if you are under 18, your parent, guardian or an ‘independent person’ must be with you before you can be questioned. Depending on your age, there are also laws about things like searching you, examining your body or taking samples from it and taking your fingerprints. See ‘Young people & the police’ (link below).
  • people with mental health issues: an Independent Third Person (ITP) must be with you when police ask you questions, fingerprint you or if they take any samples from your body, such as hair. The ITP helps you and the police understand each other; they do not give legal advice. See the Office of the Public Advocate’s website (link below) for more information about ITPs.
  • Indigenous people: the police must tell the Victorian Aboriginal Legal Service and the Aboriginal Community Justice Panel that you’ve been arrested.

Sobering-up centres

If there is a sobering-up centre in the area, the police may release you into the custody of a representative of the centre. You will not be charged with an offence.

As well as providing a safe place for people to sober up, sobering-up centres help people with alcohol-related problems. They can refer you to health services and other support services.

Being charged

It is up to the police officer to decide whether to charge you with an offence. If they decide not to charge you, you may get a caution instead.

Bail

If you have been charged with one of these offences you will usually be bailed and allowed to leave the police station, unless you have been charged with other, more serious offences as well.

Usually you will be given an undertaking of bail form that says you promise to go to court on the date your case is listed.

Court hearing and judgement

Should I go to court for the hearing?

Going to the hearing gives you a chance to tell your side of the story to the magistrate.

If you don’t attend court the matter will usually be heard without you and the magistrate will make a decision anyway. This is called an ‘ex parte’ hearing. The magistrate will make a finding based on police evidence.

Get legal advice if you want to argue against the charge.

Will I get a conviction?

Although it is possible, it’s unlikely you will be convicted (be found guilty and given a penalty) for an offence of public drunkenness, unless there are other, associated offences– such as violence or obscene behaviour – or you have previously been found guilty by a court for this type of offence. 

If you are convicted and you spent time in police custody when you were arrested, the magistrate will probably say that this is enough punishment for the offence and discharge you unconditionally.

Any conviction will appear on your criminal record. See 'Police records' (link below).

Can I be put on a diversion program instead?

Diversion programs let some people avoid getting a criminal record by doing agreed activities. Diversion programs are usually only an option for first-time offenders.

To apply for a diversion program you must admit that you committed the offence and apologise for it. The police must also agree.

The activities may include:

  • taking part in an alcohol-education program
  • paying an amount of money to charity
  • doing community service.

Once you have completed the conditions of your diversion program the charges against you are discharged. If you do not complete the conditions the case will be heard at court and you may be convicted.

Penalties

These offences carry the following penalties if you are convicted:

  • drunk in a public place: maximum of one penalty unit.
  • drunk and disorderly:
    • first offence – maximum of one penalty unit or three days prison
    • second or subsequent offence: five penalty units or one month prison
  • drunk and behaving in a riotous or disorderly manner – maximum of 10 penalty units or prison for two months.

See ‘Penalty and fee units’ (link below) to find out the current value of a penalty unit.

More information

Dealing with the police

Going to court

Penalty and fee units

Police records

Young people and the police

Related publications

Am I old enough?

Your rights: police powers in Victoria

Your day in court: a guide to attending the Magistrates’ Court

Related websites

Office of the Public Advocate – Independent Third Persons

How we can help

Call Victoria Legal Aid’s (VLA) Legal Information Service for free information over the phone about the law and how we can help you with your legal problem. You can speak to a legal information officer in English or ask for an interpreter. Phone (03) 9269 0120 or 1800 677 402 (country callers), Monday to Friday from 8.45 am to 5.15 pm.

To find out more about any of our legal services see What we do.

Who else can help?

Your local community legal centre (CLC) can give you legal information and advice. Most CLC services are free. See the Community Law website for more information and CLC contact details.