Drink driving is one of the most frequently prosecuted traffic offences in Victoria. Offences are governed by the Road Safety Act 1986 (Vic) and arise where a person drives or is in charge of a motor vehicle with a blood alcohol concentration (BAC) that exceeds the applicable legal limit. Penalties increase significantly depending on the BAC reading recorded and a driver’s prior history.

Drink driving matters are heard in the Magistrates’ Court of Victoria. Almost all offences carry mandatory licence disqualification, and higher-range readings or repeat offending can result in imprisonment. At Angus Cameron and Partners, we have represented countless clients facing drink driving charges and have a detailed understanding of the procedural and evidentiary issues that arise in these matters.

If you have been charged with a drink driving offence, it is important to get legal advice as early as possible. There may be defences available, and the way your case is presented — including at sentencing — can make a significant difference to the outcome.

The Offence

A drink driving offence occurs where a person drives or is in charge of a motor vehicle and has a BAC that exceeds the limit applicable to them. The prosecution must prove beyond reasonable doubt that:

  • the accused was driving, or in charge of, a motor vehicle;
  • the accused had a BAC exceeding the applicable legal limit at the time; and
  • breath or blood testing procedures were carried out in compliance with the legislative requirements under the Road Safety Act 1986 (Vic).

BAC Limits

The applicable BAC limit depends on the driver’s licence status and the type of vehicle being driven:

  • 0.00 BAC — applies to learner drivers, probationary drivers, drivers of heavy vehicles, buses, and certain other commercial vehicles
  • 0.05 BAC — applies to all other fully licensed drivers

BAC Categories and Penalties

The Road Safety Act creates different categories of drink driving offence based on the BAC recorded, with escalating penalties for higher readings and repeat offences. For a first offence on a full licence, the general ranges are as follows:

  • Low range (0.05 to below 0.07): fine and licence disqualification
  • Mid range (0.07 to below 0.10): fine and licence disqualification, with imprisonment possible for repeat offenders
  • High range (0.10 to below 0.15): fine and licence disqualification, with imprisonment possible
  • Very high range (0.15 and above): more significant fines and longer disqualification, with imprisonment more likely for repeat offenders

Penalties increase substantially for second and subsequent offences within ten years.

In Charge of a Motor Vehicle

The offence extends beyond actively driving to include being “in charge” of a motor vehicle. Whether a person is “in charge” depends on all the circumstances, including their proximity to the vehicle, whether they held the keys, and their intention with respect to driving. A person seated in the driver’s seat with the keys in the ignition may be found to be in charge of a vehicle even if the vehicle was not moving.

Breath and Blood Testing

Police may require a driver to submit to a preliminary breath test (PBT) at the roadside. If the result is positive, or if a driver is taken to a police station or booze bus, an evidentiary breath analysis will be conducted. The results of that analysis form the basis of the charge.

Blood samples may also be taken in certain circumstances, including following an accident or where a driver cannot provide a breath sample. The procedures for collecting and analysing blood samples must comply with strict legislative requirements.

Defences

Being charged with a drink driving offence does not necessarily mean you will be convicted. There are a number of defences that may apply depending on the circumstances.

Post-driving consumption

If you consumed alcohol after driving but before being tested, you may be able to argue that your BAC at the time of testing does not accurately reflect your BAC at the time you were driving. This defence requires detailed evidence about the timing and quantity of alcohol consumed both before and after driving.

Not driving or in charge

If the prosecution cannot prove beyond reasonable doubt that you were driving or in charge of the vehicle at the relevant time, the charge cannot succeed. This may arise where there is a question about who was driving, or where you had no realistic intention of driving.

Procedural and evidentiary challenges

The Road Safety Act sets out strict procedural requirements for breath and blood testing. If those requirements were not followed — for example, if the required observation period before testing was not observed, or the device used was not properly calibrated — there may be grounds to challenge the admissibility or reliability of the test results.

Medical issues

In limited circumstances, a medical condition affecting the accuracy of breath testing — such as certain gastric or respiratory conditions — may provide a basis for challenging the reliability of a reading.

FAQs

What is the legal alcohol limit in Victoria?

For fully licensed drivers, the legal limit is 0.05 BAC. Learner drivers, probationary drivers, and drivers of certain commercial vehicles must maintain a 0.00 BAC.

Will I lose my licence if charged with drink driving?

Almost certainly, yes. Virtually all drink driving offences in Victoria carry mandatory minimum licence disqualification periods. The length of disqualification depends on your BAC reading, whether it is a first or subsequent offence, and the type of licence you hold.

Can I go to jail for drink driving in Victoria?

Imprisonment is possible for higher-range readings and for repeat offenders. It is not the usual outcome for a first offence with a lower BAC, but it remains a real possibility depending on the circumstances. An experienced lawyer can advise you on the realistic range of outcomes in your matter.

What is an interlock condition?

The Secretary to the Department of Transport and Planning must impose alcohol interlock conditions on drivers convicted of certain drink driving offences, including readings of 0.10 or above and second or subsequent offences. An interlock device is fitted to the vehicle and requires the driver to provide a breath sample before the vehicle will start. The interlock period runs in addition to the disqualification period.

Can I avoid a conviction for drink driving?

In limited circumstances, a court may deal with a drink driving charge without recording a conviction — for example, through a diversion or an adjournment on undertaking. However, this is not available in all cases and depends on factors including your BAC, your prior record, and the particular court. We can advise you on whether this may be an option in your matter.

What happens if I refuse a breath test?

Refusing to submit to a preliminary or evidentiary breath test is itself a serious offence under the Road Safety Act and carries penalties similar to or greater than a high-range drink driving charge, including licence disqualification.

Do I need a lawyer for a drink driving charge?

Yes. Even for a first offence, the way your matter is presented can significantly affect the penalty imposed, including the length of any disqualification. An experienced lawyer can also identify whether any defences apply, advise on the prospects of contesting the charge, and ensure you receive the best possible outcome.

What is the difference between a PBT and an evidentiary breath analysis?

A preliminary breath test (PBT) is a roadside screening test. It does not form the basis of a charge on its own but may trigger a requirement to attend for an evidentiary breath analysis. The evidentiary analysis, conducted on an approved device, produces the reading that is used as evidence in court.

Can I get bail if charged with a drink driving offence?

Drink driving matters are generally dealt with by way of summons rather than arrest. However, if you are arrested and held, bail can usually be obtained. We are available to assist with urgent bail applications where required.

Related Guides

You may also find the following guides useful: