Drink driving

Drink driving

It is an offence to drive a motor vehicle if the blood alcohol concentration (BAC) in your breath is higher than the prescribed amount. The prescribed amount is 0.05 per cent unless you are on a zero BAC licence.

Speak to a lawyer if you have been charged with:

  • driving under the influence 
  • driving under the influence of drugs and alcohol
  • if you have been found guilty of a drink or drug driving offence before.

Going to court for a drink driving offence

For information about how to prepare for the court hearing see Going to court for traffic offences.

Whether you are guilty depends on the exact facts and circumstances of your case. Look at the ‘Details of the charge’ in your charge sheet to see what the police officer wrote about your offence. The magistrate refers to this in the courtroom.

Often the police will lay two charges. The most common charges are:

  • driving or being in charge of a motor vehicle under the influence
  • driving or being in charge of a motor vehicle while the blood alcohol concentration (BAC) exceeds the prescribed limit.

You can tell the court that you will plead guilty to one charge and then the police will withdraw the other charge.

The prosecution has to prove that you were driving a motor vehicle and that the alcohol reading was above the legal amount.

The police can use the outcome of the breath test as long as they used the right procedure in carrying out the test. To challenge this, you would need to show that the testing device was not working properly or was not used properly.

Possible defences

It is a defence if:

  • you were not the driver of the vehicle or
  • if the test for alcohol was taken more than three hours after you were driving.

It is not a defence to say that you thought you were under the limit.

Possible penalties for drink driving offences

Losing your licence

In most cases, the magistrate must cancel your licence and disqualify you from driving for a certain amount of time. The penalty will depend on your charge.

If you are charged with driving under the influence the penalty is:

  • two years for your first offence
  • four years for subsequent offences.

If you are charged with your blood alcohol concentration (BAC) exceeding the prescribed limit the penalty will depend on your BAC.

If your BAC reading was less than 0.10 per cent, the magistrate will cancel your licence and disqualify you from driving for at least six months.

If you are a learner or P-plate driver and your BAC was less than 0.05 the magistrate must cancel your licence and disqualify you from driving for at least three months.

If your reading was 0.10 per cent or more, they will cancel your licence and disqualify you from driving for at least:

  • 10 months if BAC 0.10 or more but less than 0.11
  • 11 months if BAC 0.11 or more but less than 0.12
  • 12 months if BAC 0.12 or more but less than 0.13
  • 13 months if BAC 0.13 or more but less than 0.14
  • 14 months if BAC 0.14 or more but less than 0.15
  • 15 months if BAC 0.15 or more but less than 0.16
  • 16 months if BAC 0.16 or more but less than 0.17
  • 17 months if BAC 0.17 or more but less than 0.18
  • 18 months if BAC 0.18 or more but less than 0.19
  • 19 months if BAC 0.19 or more but less than 0.20
  • 20 months if BAC 0.20 or more but less than 0.21
  • 21 months if BAC 0.21 or more but less than 0.22
  • 22 months if BAC 0.22 or more but less than 0.23
  • 23 months if BAC 0.23 or more but less than 0.24
  • 24 months if BAC 0.24 or more.

The magistrate can extend the disqualification period but they cannot reduce it. If this is your second offence in 10 years, the minimum period of disqualification is double.

If you lose your licence

If you lose your licence, you must not drive during the disqualification period. There are no special licences that allow you to drive some of the time.

Get in touch with a driver education agency as soon as you lose your licence. The agency will tell you what you have to do and what the costs are. You usually do two sessions with the agency. This lets them look at your progress over time. They will write a report about your alcohol use or drug use. The agency sends the report directly to court.

Demerit points

VicRoads will give you 10 demerit points if the magistrate does not cancel your licence or disqualify you from driving. The demerit points will be added from the date the offence happened. The magistrate cannot change this.

Fines

Usually the magistrate will give you a fine, up to 20 penalty units for your first offence.

Immobilising, impounding or confiscating your vehicle

If you are caught drink driving you may have your vehicle impounded if your BAC is 0.10 or more.

Other penalties

The magistrate may also put you on an undertaking to behave well for a certain amount of time.

What else might happen if I am found guilty?

What happens in court may go on your criminal record as a driving conviction. This will usually appear on your VicRoads driving record but it may also go on your criminal record.

See Possible outcomes for traffic offences for more information about penalties and other outcomes.

When the police can suspend your licence

The police can suspend your licence if you are

  • on a full licence and your BAC reading was 0.10 per cent or more
  • you are a P-plate or learner driver and your BAC reading was 0.07 per cent or more.

This is called an 'immediate suspension' even though it is not always immediate. The suspension lasts until the date in the suspension notice or until your case is heard in court.

If the magistrate cancels your licence and disqualifies you from driving, usually the disqualification will be back-dated to the date you got the immediate suspension notice.

When the court cancels your licence

If the magistrate convicted you of drink driving they must cancel your licence or permit and disqualify you from driving for at least six months.

If you were caught drink driving before 1 October 2014 there is one exception to this rule: a magistrate can choose not to record a conviction against you if you are over 26 years of age and your BAC reading was less than 0.07 per cent or you are a fully licensed driver on a zero BAC licence and your reading was less than 0.05 per cent.

Leaners and P-plate drivers

All learners and probationer drivers will be disqualified from driving if they are caught, even if their BAC was below 0.05.

Other drivers who have a zero BAC licence such as taxi drivers, professional driving instructors or truck drivers must be disqualified from driving if their BAC is 0.07 or more. The court has discretion not to cancel their licence if their BAC is below 0.07 and if no conviction is recorded.

A driver who is disqualified from driving will have to apply to the court or to VicRoads to get another licence after serving the minimum period of licence cancellation.

How to get your licence back

If you were caught before 1 October 2014

If you were caught drink driving before 1 October 2014 and you have a full licence and this is your first offence, and your reading was below 0.07 per cent, you do not have to go to court to be re-licensed. Contact VicRoads about getting another licence.

In all other circumstances, you will have go to court to be re-licensed.

If you were caught after 30 September 2014

If you were caught drink driving after 30 September 2014 you will have to go to VicRoads to apply to get your licence back if it was your first drink driving offence and you are a fully licensed driver and your BAC was less than 0.10.

In all other circumstances you will have to apply to court to be re-licensed.

Going to court to get your licence back

For information about going to court to get your licence back see Getting your licence back.

The magistrate may decide to give you another licence on the condition that you have an interlock fitted to your vehicle for a period of time. See Alcohol interlocks for more information about this and how to get a device removed.

Get help

Find out how you can get help with traffic offences.