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Drug and Drink Driving Lawyers in Melbourne

Drink and Drug Driving Offences in Victoria

If you’ve been charged with drink driving or drug driving, our expert lawyers are here to help. We have years of experience advising and representing clients in drink and drug driving matters before the Magistrates’ and County Courts in Victoria.

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Drink Driving & DUI Charges in Melbourne, Victoria

In Melbourne and all of Victoria, drink driving offences are legislated under the Road Safety Act 1986 (Vic).

Drink driving is taken very seriously in Victoria and carries strict penalties. Even in circumstances where a person with a Victorian driving license is found guilty of drink driving in another state, Vicroads will apply the same penalties that would be enforced if the offence had happened in Victoria. In most circumstances, this will mean automatic cancellation of the person’s license.

The Road Safety Act 1986 (Vic) notes several different offences in relation to drink driving, including but not limited to:

  • Driving under the influence of intoxicating liquor (DUI) (s49(1)(a));
  • Driving whilst meeting or exceeding the prescribed concentration of alcohol (PCA) (s49(1)(b));
  • Consume intoxicating liquor while driving (s49B);
  • Refusing mandatory preliminary breath test (s49(1)(c));
  • Failing or refusing to comply with stop signal or request (s49(1)(d));
  • Refusing to comply with a requirement regarding breath analysis (s49(1)(e));
  • Refusing to comply with a request for urine or blood (s49(1)(ea)); and
  • Exceeding the prescribed concentration of alcohol within 3 hours of driving (s49(1)(f).

It may appear as though many of the offences overlap. However, there are fine legal distinctions between each charge. Every offence is unique in that it requires different elements to be proven. Further, the penalty that a Court can impose differs based on the circumstances of the offence. For example, higher BAC readings and repeat offending will result in harsher penalties.

If you have been charged or are under investigation for a drink driving offence, please contact Sher Criminal Lawyers immediately. Our team specialises in drink and drug driving matters and is here to help you. We have years of experience advising and representing clients before the Magistrates Courts of Victoria.

For more information on each type of offence, please see below.

In Victoria, it is an offence to drive whilst under the influence of intoxicating liquor (DUI) (s49(1)(a) Road Safety Act 1986 (Vic).

To prove a charge of DUI, the prosecution must demonstrate beyond a reasonable doubt that the accused:

  • Was driving or in control of a motor vehicle;
  • Was under the influence of intoxicating liquor; and
  • Was incapable of having proper control of the vehicle due to the presence of the liquor.

The penalty that the Court imposes in a matter of DUI will depend on whether the accused has any previous DUI convictions (s49(2)). As such:

  • A first DUI offence: carries a maximum fine of 25 penalty units or 3 months imprisonment or both.
  • A second DUI offence: carries a maximum fine of 120 penalty units or 12 months imprisonment or both.
  • Any other subsequent DUI offence: carries a maximum fine of 180 penalty units or 18 months imprisonment or both.

In Victoria, the value of one penalty unit is around $165.

The Act (s50(1B)) also requires a mandatory disqualification from driving for any person found guilty of DUI. As such:

  • A first DUI offence: carries a mandatory disqualification period of 2 years.
  • Any subsequent DUI offence: carries a mandatory disqualification period of 4 years

If you are charged with DUI, it is important to have an experienced criminal lawyer assess your legal options. It may be possible to negotiate alternative charges with the police prosecution. This is preferable, for example, if the matter can proceed on charges that carry more lenient penalties and a lesser mandatory disqualification period.

In Victoria, is an offence to drive whilst exceeding the prescribed concentration of alcohol (PCA) (s49(1)(b) Road Safety Act 1986 (Vic)).

To prove a charge of driving whilst exceeding the PCA, the prosecution must demonstrate beyond a reasonable doubt that the accused:

  • Was driving or in control of a motor vehicle; and
  • Had the prescribed PCA or more than the PCA present in their breath or blood.

The PCA for most fully licensed drivers is described under s3(1) of the Act as either:

  • a concentration of alcohol present in the blood of that person of 0·05 grams per 100 millilitres of blood; or
  • a concentration of alcohol present in the breath of that person of 0·05 grams per 210 litres of exhaled air.

However, some drivers who hold a zero-blood alcohol concentration (BAC) license must have no detectable alcohol in their body.

It should also be noted that a person can be charged with driving whilst exceeding the PCA up to 3 hours after driving the motor vehicle. Section 49(1)(f) states that a person has committed an offence if they:

  • provide a breath test up to 3 hours after driving a motor vehicle; and
  • that breath test indicates that the person has the prescribed PCA or more than the PCA present in their breath.

Section 49(1)(g) sets out a similar offence in regard to blood tests. However, in both cases, the prosecution must be able to prove that the PCA reading was not due solely to the consumption of alcohol after driving the motor vehicle. The prosecution often relies upon this charge if the accused fails or refuses to give a roadside breath test but later provides a breath or blood test at the police station.

The penalty that the Court imposes in a matter of driving whilst exceeding PCA will depend on whether the accused has any previous and similar convictions (s49(2A)). As such:

  • A first PCA offence: carries a maximum fine of 20 penalty units.
  • A second PCA offence:
      Where BAC was less than 0.15: carries a maximum fine of 60 penalty units or 6 months imprisonment.
    •  Where BAC was 0.15 or more: carries a maximum fine of 120 penalty units or 12 months imprisonment.
  • Any subsequent PCA offence:
     Where BAC was less than 0.15: carries a maximum fine of 120 penalty units or 12 months imprisonment.
    • Where BAC was 0.15 or more: carries a maximum fine of 180 penalty units or 18 months imprisonment.

In Victoria, the value of one penalty unit is around $165.

The Act (s50(1A)) also requires a mandatory disqualification from driving for any person found guilty of a PCA offence. The length of the mandatory disqualification period depends:

  • The BAC reading; and
  • Whether this is the accused’s first PCA offence or a subsequent offence.

Mandatory disqualification periods vary from 3 months to 4 years. For full details, please visit the relevant Schedule here.

If you have been charged with driving whilst exceeding PCA, it is important to have an experienced criminal lawyer assess your legal options. Depending on the evidence and circumstances, there may be some reasonable doubt as to whether the police followed all procedural requirements. The accused cannot be held criminally liable for the charge if all elements of the offence cannot be proven by the prosecution.

In Victoria, is an offence to consume intoxicating liquor whilst driving (s49B Road Safety Act 1986 (Vic)). Similarly, it is also an offence to consume intoxicating liquor whilst accompanying a learner driver (s49C).

To lay this charge, the police do not necessarily have to see you drinking alcohol whilst driving. If the police stop you and find an open bottle of alcohol in your car, this may be enough to suggest that you were drinking whilst driving. In this case, it is likely that the police will also breath test you (at least 15 minutes after the time of your last drink). If you register a reading that meets or exceeds the PCA, you will likely also be charged with a drink driving offence.

The penalty for consuming intoxicating liquor whilst driving (or accompanying a learner driver) is a fine of 10 penalty units (around $165 per unit). There is no mandatory suspension or disqualification period in regard to this offence. However, the Magistrate retains the discretion to suspend or disqualify your license if they believe the circumstances warrant such a penalty.

If you have been charged with consuming intoxicating liquor and/or any other drink driving offence, it is important to have an experienced criminal lawyer assess your legal options. Depending on the evidence and circumstances, there may be some reasonable doubt as to whether the elements of the offence have been proven. The accused cannot be held criminally liable for the charge if all elements of the offence cannot be proven by the prosecution.

The Road Safety Act 1986 (Vic) notes several different offences in relation to failing or refusing to comply with police directions and tests.

It is an offence to refuse to undergo a preliminary breath test that is required of you by a police officer or an authorised employee of the Department of Transport (s49(1)(c)). To prove this charge, the prosecution must demonstrate beyond a reasonable doubt that the accused:

  • Was driving or in control of a vehicle;
  • Refused to undergo a preliminary breath test;
  • The refusal was made by way of words or conduct;
  • The breath test was requested in the proper manner by a police officer or an authorised employee of the Department of Transport.

Therefore, refusing to blow or failing to blow satisfactorily into the device could amount to a refusal.

Further, it is an offence to refuse or fail to comply with a request or signal to stop a motor vehicle and remain stopped (s49(1)(d)). To prove this charge, the prosecution must demonstrate beyond a reasonable doubt that the accused:

  • Was driving or in control of a vehicle;
  • Was requested or signalled to stop by a police officer at a preliminary testing station;
  • Ought reasonably to have seen the request or signal to stop; and
  • Refused or failed to comply with the request or signal; or
  • Refused or failed to remain stopped.

Finally, it is an offence to refuse to comply with certain police requirements made in relation to breath tests (s49(1)(e)). A similar offence exists in relation to blood and urine tests (s49(1)(ea)).

All of the above offences carry the same penalties. The penalty that the Court imposes will depend on whether the accused has any previous and similar convictions (s49(3)). As such:

  • A first offence: carries a maximum fine of 12 penalty units.
  • A second offence: carries a maximum fine of 120 penalty units or 12 months’ imprisonment.
  • Any subsequent offence: carries a maximum fine of 180 penalty units or 18 months’ imprisonment.

In Victoria, the value of one penalty unit is around $165.

The Act (s50(1D)) also requires a mandatory disqualification from driving for any person found guilty of the above offences. As such:

  • A first DUI offence: carries a mandatory disqualification period of 2 years.
  • Any subsequent DUI offence: carries a mandatory disqualification period of 4 years.

If you have been charged with an offence related to failing or refusing to comply with police directions or drink driving tests, it is important to have an experienced criminal lawyer assess your legal options. Depending on the evidence and circumstances, there may be some reasonable doubt as to whether the elements of the offence have been proven. The accused cannot be held criminally liable for the charge if all elements of the offence cannot be proven by the prosecution.

Drug Driving Charges in Victoria

In Victoria, drug driving offences are legislated under the Road Safety Act 1986 (Vic).

Drug driving is taken very seriously in Victoria and carries strict penalties. Even in circumstances where a person with a Victorian driving license is found guilty of drug driving in another state, Vicroads will apply the same penalties that would be enforced if the offence had happened in Victoria. In most circumstances, this will mean automatic cancellation of the person’s license.

The Road Safety Act 1986 (Vic) notes several different offences in relation to drink driving, including but not limited to:

  • (s49(1)(a)) Driving under the influence of any drug;
  • (s49(1)(ba)) Driving while impaired by a drug;
  • (s49(1)(bb)) Driving whilst meeting or exceeding the prescribed concentration of drugs (PCD);
  • (s49(1)(ca)) Refusing drug impairment assessment;
  • (s49(1)(eb)) Refusing to comply with request for oral sample.

It may appear as though many of these offences overlap. However, there are fine legal distinctions between each charge. Every offence is unique in that it requires different elements to be proven. Further, the penalty that a Court can impose differs based on the circumstances of the offence. For example, repeat offending will result in harsher penalties.

If you have been charged or are under investigation for a drug driving offence, please contact Sher Criminal Lawyers immediately. Our team specialises in drug driving matters and is here to help you. We have years of experience advising and representing clients before the Magistrates Courts of Victoria.

In Victoria, it is an offence to drive whilst under the influence of any drug (DUI) (s49(1)(a) Road Safety Act 1986 (Vic)).

To prove a charge of DUI, the prosecution must demonstrate beyond a reasonable doubt that the accused:

  • Was driving or in control of a motor vehicle;
  • Was under the influence of any drug; and
  • Was incapable of having proper control of the vehicle due to that presence of the drug.

The penalty that the Court imposes in a matter of DUI will depend on whether the accused has any previous DUI convictions (s49(2)). As such:

  • A first DUI offence: carries a maximum fine of 25 penalty units or 3 months’ imprisonment or both.
  • A second DUI offence: carries a maximum fine of 120 penalty units or 12 months’ imprisonment or both.
  • Any other subsequent DUI offence: carries a maximum fine of 180 penalty units or 18 months’ imprisonment or both.

In Victoria, the value of one penalty unit is around $165.

The Act (s50(1B)) also requires a mandatory disqualification from driving for any person found guilty of DUI. As such:

  • A first DUI offence: carries a mandatory disqualification period of 2 years.
  • Any subsequent DUI offence: carries a mandatory disqualification period of 4 years.

If you have been charged with DUI, it is important to have an experienced criminal lawyer assess your legal options. It may be possible to negotiate alternative charges with the police prosecution. This is preferable, for example, if the matter can proceed on charges that carry a lesser mandatory disqualification period.

In Victoria, it is an offence to drive whilst impaired by a drug (s49(1)(ba) Road Safety Act 1986 (Vic)). To prove this charge, the prosecution must demonstrate beyond a reasonable doubt that the accused:

  • Was driving or in charge of a motor vehicle; and
  • Was impaired by a drug.

In regard to this offence, the term ‘drug’ does not just refer to illicit drugs. It may include prescription or non-prescription medications that deprives a person of their normal mental or physical faculties. If the police suspect you of being impaired by a drug while driving, they may require you to undergo a drug assessment.

If you are found guilty of driving while impaired by a drug, the penalty that the Court imposes depends on whether you have any previous and similar convictions (s49(3)). As such:

  • A first offence: carries a maximum fine of 12 penalty units.
  • A second offence: carries a maximum fine of 120 penalty units or 12 months’ imprisonment.
  • Any subsequent offence: carries a maximum fine of 180 penalty units or 18 months’ imprisonment.

In Victoria, the value of one penalty unit is around $165.

The Act (s50(1C)) also requires a mandatory disqualification from driving for any person found guilty of driving while impaired by a drug. As such:

  • A first offence: carries a mandatory disqualification period of 1 year.
  • Any subsequent offence: carries a mandatory disqualification period of 2 years.

If you have been charged with driving while impaired by drugs, it is important to have an experienced criminal lawyer assess your legal options. In certain circumstances, legal defences exist in relation to this charge. It may be possible to negotiate alternative charges with the police prosecution. This is preferable, for example, if the matter can proceed on charges that carry more lenient penalties and a smaller mandatory disqualification period.

The police may choose to charge you with an alternative offence if they cannot demonstrate that your driving was impaired by drugs. In this case, police will often lay a charge of driving with the prescribed concentration of drugs present.

In Victoria, is an offence to drive whilst exceeding the prescribed concentration of drugs (PCD) (s49(1)(bb) Road Safety Act 1986 (Vic)). Similarly, it is a separate offence to drive whilst exceeding both the PCD and PCA (see above Driving Whilst Exceeding PCA) (s49(1)(bc) Road Safety Act 1986 (Vic)).

To prove a charge of driving whilst exceeding the PCD, the prosecution must demonstrate beyond a reasonable doubt that the accused:

  • Was driving or in control of a motor vehicle; and
  • Had the prescribed PCD present in their blood or fluid.

In regard to this offence, the term ‘drug’ refers to three illicit drugs in particular:

  • Methylamphetamine;
  • MDMA; and
  • Cannabis (THC).

The PCD for all drivers is zero. This means that drivers are not allowed to have any concentration of these drugs present in their blood or fluid.

It should also be noted that a person can be charged with driving whilst exceeding the PCD up to 3 hours after driving the motor vehicle. Section 49(1)(h) states that a person has committed an offence if they:

  • provide an oral sample up to 3 hours after driving a motor vehicle; and
  • that oral sample indicates that the person has the prescribed PCD present in their fluids.

Section 49(1)(i) sets out a similar offence in regard to blood tests. However, in both cases, the prosecution must be able to prove that the PCA reading was not due solely to the consumption of that drug after driving the motor vehicle. The prosecution often relies upon this charge if the accused fails or refuses to give a roadside drug test but later complies in providing a test at the police station.

The penalty that the Court imposes in a matter of driving whilst exceeding PCD will depend on whether the accused has any previous and similar convictions (s49(3AAA)). As such:

  • A first PCD offence: carries a maximum fine of 12 penalty units.
  • A second PCD offence: carries a maximum fine of 60 penalty units.
  • Any subsequent PCD offence: carries a maximum fine of 120 penalty units.

In Victoria, the value of one penalty unit is around $165.

The Act (s50(1E)) also requires a minimum mandatory disqualification from driving for any person found guilty of a PCD offence. As such:

  • A first PCD offence: minimum mandatory disqualification period of 6 months.
  • A subsequent PCD offence: minimum mandatory disqualification period of 12 months.

If you have been charged with driving with the prescribed concentration of drugs, it is important to have an experienced criminal lawyer assess your legal options. Any one piece of evidence in your case could make a big difference to the outcome. The accused cannot be held criminally liable for the charge if all elements of the offence cannot be proven by the prosecution.

The Road Safety Act 1986 (Vic) notes several different offences in relation to failing or refusing to comply with police directions and tests.

It is an offence to refuse to undergo a drug impairment assessment that is required of you by a police officer (s49(1)(ca)). To prove this charge, the prosecution must demonstrate beyond a reasonable doubt that the accused:

  • Was driving or in control of a vehicle;
  • Refused to undergo a drug assessment or some other request in relation to a drug assessment;
  • The refusal was made by way of words or conduct; and
  • The drug assessment was requested in the proper manner by a police officer.

If you are found guilty of refusing to undergo a drug impairment assessment, the penalty that the Court imposes depends on whether you have any previous and similar convictions (s49(3)). As such:

  • A first offence: carries a maximum fine of 12 penalty units.
  • A second offence: carries a maximum fine of 120 penalty units or 12 months’ imprisonment.
  • Any subsequent offence: carries a maximum fine of 180 penalty units or 18 months’ imprisonment.

In Victoria, the value of one penalty unit is around $165.

The Act (s50(1D)) also requires a mandatory disqualification from driving for any person found guilty of refusing to undergo a drug impairment assessment. As such:

  • A first offence: carries a mandatory disqualification period of 2 years.
  • Any subsequent offence: carries a mandatory disqualification period of 4 years.

A similar offence exists in regard to refusing to comply with a request for an oral sample (s49(1)(eb)). However, it is considered a less serious offence and carries more lenient penalties:

  • A first offence: carries a maximum fine of 12 penalty units and a mandatory disqualification period of 2 years.
  • A second offence: carries a maximum fine of 60 penalty units and a mandatory disqualification period of 4 years.
  • Any subsequent offence: carries a maximum fine of 120 penalty units and a mandatory disqualification period of 4 years.

If you have been charged with an offence related to failing or refusing to comply with a drug assessment or oral sample, it is important to have an experienced criminal lawyer assess your legal options. Depending on the evidence and circumstances, there may be some reasonable doubt as to whether the elements of the offence have been proven. The accused cannot be held criminally liable for the charge if all elements of the offence cannot be proven by the prosecution.

The Court Procedure for Drink and Drug Driving Charges in Victoria

If you have been charged with drink or drug driving, it is important to understand your legal options. This area of law is complex and there are many things you must consider before attending court.

Our specialist team at Sher Criminal Lawyers is extensively experienced in drink and drug driving matters. We frequently advise and represent clients in the Magistrates Courts of Victoria. If you need help, please contact us immediately. One of our experienced drug and drink driving lawyers will expertly guide your case through every stage of proceedings. Our specialised knowledge and experience are vital in securing the best possible outcome.

Things to Consider When Charged with Drink or Drug Driving in Victoria

Different drink and drug driving offences require different elements to be proven. If all of the elements for a particular offence cannot be proven by the prosecution, the accused cannot be held legally liable for committing that offence. This is why it is important to seek the help of a criminal lawyer who specialises in drink and drug driving charges. An experienced criminal lawyer may even be able to negotiate alternative charges with the prosecution. 

If you have been charged with any offence related to drink or drug driving, please contact Sher Criminal Lawyers immediately. Our expert lawyers specialise in drink and drug driving matters and use proven legal strategies to secure the best possible outcome in each case. We pride ourselves on outstanding results and have years of experience advising and representing clients before the Magistrates’ Court of Victoria.


Things for the Accused to Consider

Our specialist team at Sher Criminal Lawyers can answer your questions and provide you with expert advice and representation in your drink or drug driving matter. We will explain your legal options to you by answering important questions such as:

  • If I undertake the Road Trauma Course, will this improve my case?
  • If I undertake counselling, will this improve my case?
  • Should I engage a forensic expert to help my case (e.g. liver function test)?
  • How will my previous convictions affect the outcome of my matter?
  • How will the results of my breath test or drug assessment affect the outcome of my matter?
  • Is there a legal defence I can rely on in my matter?
  • Does the prosecution have enough evidence to prove my charge?
  • What is the likely result if I plead guilty or not guilty?
  • Is it possible to have my charges negotiated to a lesser offence?

Things that the Court Must Consider

If your matter is taken to Court, the Magistrate or Judge will have to consider a wide range of factors that might prove you to be guilty or not guilty. In all drink and drug driving matters, our experienced team at Sher Criminal Lawyers prepares the best possible defence case by considering factors such as:

  • Can it be proven that you were driving the vehicle;
  • Did the police follow proper procedure;
  • Are there any factual disputes in regard to the circumstances;
  • Is forensic examination of the evidence required;
  • Can all elements of the offence be proven by the prosecution?

Penalties for Drink and Drug Driving Charges in Victoria

The Victorian Courts take drink and drug driving charges very seriously.

Any Victorian driver found guilty of drink or drug driving faces a mandatory period of disqualification from driving. The exact penalty and mandatory disqualification period imposed by the Court will depend on:

  • The charge;
  • The conditions of the license held by the driver;
  • Any previous convictions of drink or drug driving; and
  • The BAC reading (in drink driving matters).

For more details about the penalties and mandatory disqualification period in relation to a specific charge, please see above (Drink Driving Charges in Victoria and Drug Driving Charges in Victoria). The value of one penalty unit in Victoria is around $165.

Common penalties in relation to drink and drug driving charges include:

  • Disqualification from driving for a set amount of time;
  • Cancellation of your license;
  • A Good Behaviour Bond (Adjourned Undertaking)
  • A fine;
  • Attendance at a Behaviour Change Program (required before applying for another license);
  • Having an alcohol interlock system installed in your vehicle for a set amount of time;
  • Having a zero BAC limit for at least three years;
  • Having your vehicle impounded.

What to Do If You Are Charged with Drink or Drug Driving in Victoria

If you have been charged or are under investigation for a drink or drug driving offence, please contact Sher Criminal Lawyers immediately. We are here to help you achieve the best possible outcome in your matter.

Our team of specialist defence lawyers is extensively experienced in drink and drug driving matters. We frequently advise and represent clients in all kinds of criminal driving cases before the Magistrates Court of Victoria.

We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.

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