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 before or if you have been found guilty of a drink or drug driving offence before.
Going to court for a drink driving offence
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, you can see what the police officer wrote about your offence. The magistrate refers to this in the courtroom.
Normally, the police will lay two charges, which are alternatives. This means 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.
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. This will depend on your BAC.
If the magistrate convicts you of drink driving, and 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 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 the above.
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.
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.
Usually the magistrate will give you a fine, up to 20 penalty units for your first offence.
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?
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.
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 on a zero BAC licence and your reading was less than 0.05 per cent.
How to get your licence back
If 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. See Getting your licence back for more information.
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.
Find out how you can get help with traffic offences.