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 under 0.05 per cent unless you are on a zero BAC licence, for example, a P plate, learner permit or taxi driver licence. Speak to a lawyer if you have been charged with:
- driving under the influence
- driving with both drugs and alcohol in your system
- if you have been found guilty of a drink-driving or drug-driving offence before.
Going to court for a drink driving offence
Often the police will lay two charges. The most common charges are:
- providing a sample of blood or breath that exceeds the prescribed limit within three hours of driving (failing a blood or breath test)
- driving or being in charge of a motor vehicle while the (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.
What are my options if I have to go to court?
If you agree that you broke the law, you should tell the court that you are pleading guilty. During the court hearing, the prosecutor will read out the statement of alleged facts. The magistrate will find you guilty and give you a penalty.
If you plead guilty the magistrate treats this as a sign that you are co-operating and may give you a less severe penalty.
Plead not guilty
If you believe that you did not break the law, or you disagree with what is in the statement of alleged facts, you must tell the prosecutor before your court date that you plan to plead not guilty. They will hold a summary case conference with you before your case is heard in court. If you still want to plead not guilty after the conference, tell the magistrate. The magistrate will adjourn (put off) your case for another day.
You will come back to court for a contested hearing. When you come back the magistrate listens to evidence from you and the police before making a decision. You should have a defence. Saying that you did not know you were breaking the law is not a good enough defence.
If you are pleading not guilty, get legal advice before the contested hearing.
- 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.
Can I adjourn my hearing?
You can ask the magistrate to adjourn (put off) your case if you have a good reason. For example, to get a lawyer.
If you have not adjourned your case before and you are on summons, you may be able to get an adjournment without going into the courtroom. When you arrive at court, go to the counter and tell the staff you want an adjournment.
What are the penalties if I am found guilty?
Losing your licence
In most cases, the magistrate must cancel your licence and disqualify you from driving for a certain amount of time. The will depend on your charge and when the offence happened. The law is getting tougher for drink drivers. All drivers who are caught drink driving after 29 April 2018 must have their licence or permit cancelled if they have one.
If you are charged with your blood alcohol concentration (BAC) exceeding the prescribed limit the penalty will depend on your BAC.
If you are required to drive with zero alcohol (such as a P plate drivers or taxi 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 you got an infringement for drink driving and you are, over 26 years old, fully licenced and your BAC is under 0.07 the minimum licence cancellation is also three months.
If your reading was 0.070 per cent or more, they will cancel your licence and disqualify you from driving for at least:
- 6 months if BAC 0.05 or more but less than 0.10
- 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.
Do not drive after 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.
Behaviour change programs
All drivers caught drink driving have to complete a behaviour change program before they can apply for another licence.
These programs are different depending on how high the driver’s BAC was and whether they had been caught drink or drug driving before. Drivers will get a letter from VicRoads telling them the details of which program they must complete.
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.
What else might happen if I am found guilty?
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
- a P-plate or learner driver and your BAC reading was 0.07 per cent or more.
- charged with a refusal offence
- caught drink or drug driving before within the last 10 years.
This is called an 'immediate suspension' even though it is not always immediate. It could take up to 12 months for this to happen. 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.
The device is fitted to a vehicle and the driver must blow into it before starting the vehicle. The vehicle will not start if there is alcohol on the driver’s breath.
When an alcohol interlock is used
Your vehicle will be fitted with an interlock if your licence was cancelled for drink driving. In most cases a driver can apply to VicRoads for a new licence after they have served the minimum disqualification period. Before VicRoads will issue another licence, the driver will need to:
- complete a behaviour change program, and
- have an alcohol interlock device fitted to their vehicle.
The interlock licence will last for at least six months. This depends on offence that the driver was disqualified for.
Before 1 December 2019 many drivers had to attend court to get another licence after it had been cancelled for drink driving. For some of these drink driving offences, the court could choose not to impose an interlock condition. This depended on the kind of offence and when the offence happened.
A driver whose licence was cancelled for one of these old offences can appeal to the Magistrates’ Court if VicRoads refuses to grant a licence without an interlock condition.
Alcohol interlock exemption on medical grounds
A driver may want to apply for an interlock exemption from VicRoads. They will need to get a report from a registered specialist health practitioner giving details about why their health condition means that they will not be able to use an alcohol interlock. Drivers who are exempt must still have zero BAC when they are driving.
VicRoads may require the person to be tested to see if they are fit to drive at all.
If you do not follow the rules for using your alcohol interlock you could be fined, and your interlock licence could be suspended.
Getting an interlock removed
Before you can have an interlock condition removed from your licence you must serve the minimum interlock period that you were given and follow the rules for using the interlock.
VicRoads will look at information recorded on your interlock device when they are deciding if you can have the interlock removed. You will need to be able to show that you have not driven your vehicle whilst affected by alcohol. The Alcohol Interlock Management System (AIMS) stores information about your interlock use including camera images. VicRoads will use this data to decide if you can have your interlock removed.
Some drivers will need to complete a two-hour pre-interlock removal behaviour change program before VicRoads will consider removing their interlock condition.
If you are successful VicRoads will send you an interlock removal authority and a new licence. You will have to show these to the interlock service agent before they will remove the interlock from your vehicle.
How to get your licence back
From 1 December 2019 most people caught drink driving will have to go to VicRoads to apply to get their licence back after serving the minimum period of licence cancellation.
Anyone who was disqualified from driving for a serious driving offence, such as dangerous driving causing death, or dangerous driving when being chased by police, must apply to court to be re-licensed.
Going to court to get your licence back
Print this page
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au
Reviewed 22 August 2022