Drink Driving Lawyer Melbourne
Drink Driving (DUI) offences in Victoria.
Melbourne's leading drink driving lawyer
Facing charges of driving under the influence can result in serious penalties. Working with a solicitor that specialises in DUI and drink driving offences can provide the legal representation needed to ensure the best possible outcome; whether it be a lesser charge, a minimum loss of licence, or a drop in charges all together. Each drink driving offence will vary from case to case - my mission is to get you a successful outcome as soon as possible.
Drink Driving (Breath Test)
These drink driving charges are laid under sections 49(1)(b) and 49(1)(f) of the Road Safety Act 1986.
Ordinarily you will receive 2 charges for a single drink driving incident.
These are laid under sections 49(1)(b) and 49(1)(f) of the Road Safety Act. The police will however ordinarily only proceed with a single charge on a plea of guilty or seek that you be penalised for a single offence on a finding of guilt.
What the prosecution must prove to succeed:
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That you are correctly identified as the offender
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That you were the driver / person in charge of the motor vehicle;
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That you had alcohol present in your breath or blood; and
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For section 49(1)(b), that the concentration of alcohol in your breath or blood was at the time of driving or being in charge of the motor vehicle and was more that the prescribed amount allowed; or
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For section 49(1)(f), that the concentration of alcohol in your breath, as tested by a breath analysing instrument, within 3 hours of driving / being in charge was more than the prescribed amount allowed, and the concentration of alcohol does not relate solely to consuming alcohol after driving / being in charge of the motor vehicle.
Drink Driving (Blood Test)
This charge of drink driving exists pursuant to section 49(1)(g) of the Road Safety Act 1986
This offence is similar to the offence laid under 49(1)(f) except that the testing is done by way of a blood test. It is also likely that you will be charged under section 49(1)(b) if you receive this charge.
The offence requires that you had a sample of blood taken in accordance with sections 55, 55B, 55E or 56 and it was tested within 12 months by a qualified analyst and found to be more than the prescribed limit allowed.
Penalties for Drink Driving
Penalties for offences of drink driving laid under sections 49(1)(b), (f) or (g) are
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20 penalty units for a first offence and
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For a second offence up to 60 penalty units if the reading is less than 0.15. If the reading is 0.15 or higher, 120 penalty units or up to 12 months prison.
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For any other subsequent offence, a fine of up to 120 penalty units or prison of up to 12 months if the reading is less than 0.15. If the reading is 0.15 or higher than up to 180 penalty units or up to 18 months prison
Note that the value of a penalty unit is updated each year but is valued at $197.59 for the period from 1 July 2024 to 30 June 2025.
Mandatory Loss of Licence
Parliament has imposed minimum mandatory loss of licence provisions for drink driving offences. There are no special circumstances which allow for these to be reduced and no work licences are available in Victoria. While a Magistrate can increase the period of licence disqualification, he/she can not reduce it.
Schedule 1 of the Road Safety Act 1986 provides a table indicating the minimum period of licence loss as below. In reading that table note that section 89C allows a licence loss of 3 months rather than 6 months if your reading is 0.05 or more but less than 0.07 and you are 26 years or older, on a full licence.
*Blood alcohol level = Concentration of alcohol in blood in grams per 100 millilitres of blood or in breath in grams per 210 litres of exhaled air
Blood alcohol level*
less than ∙05
·07 or more but less than ·08
·08 or more but less than ·09
·09 or more but less than ·10
·10 or more but less than ·11
·11 or more but less than ·12
·12 or more but less than ·13
·13 or more but less than ·14
·14 or more but less than ·15
·15 or more but less than ·16
·16 or more but less than ·17
·17 or more but less than ·18
·18 or more but less than ·19
·19 or more but less than ·20
·20 or more but less than ·21
·21 or more but less than ·22
·22 or more but less than ·23
·23 or more but less than ·24
·24 or more
First offence
3 months
6 months
6 months
6 months
10 months
11 months
12 months
13 months
14 months
15 months
16 months
17 months
18 months
19 months
20 months
21 months
22 months
23 months
24 months
Subsequent offence
12 months
12 months
16 months
18 months
20 months
22 months
24 months
26 months
28 months
30 months
32 months
34 months
36 months
38 months
40 months
42 months
44 months
46 months
48 months
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Driving under the influence (DUI)
This charge is found under section 49(1)(a) of the Road Safety Act 1986.
This charge may be laid together with other drink driving charges. Police will commonly withdraw those other drink driving charges on a plea to DUI given it is the more serious charge.
To be successful the prosecution must prove the following in relation to this charge:
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That you are correctly identified as the offender;
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You were driving / in charge of a motor vehicle;
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You had consumed alcohol or other drugs; and
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Because of that alcohol or drug consumption you were incapable of having proper control of a motor vehicle.
Police will often rely on their own observations of your driving or observations from witnesses.
They may rely on a breath test reading and expert evidence as to the ability to have proper control at that particular reading.
Police will also rely on their observations of whether you were slurring your words, uncoordinated and other observations even if they did not observe your driving, for example if they attend the scene of a collision or observe you trying to start a motor vehicle.
Incapable of having proper control does not require police to prove that you were totally drunk. “The standard of control is the standard of an ordinary reasonably competent driver.” (R v Ciantar (2006) 16 VR 26)
Penalties for DUI
• For a first offence this carries a fine up to 25 penalty units or prison for up to 3 months
• For a second offence a fine up to 120 penalty units or up to 12 months prison.
• For any other subsequent offence, a fine up to 180 penalty units or up to 18 month prison.
Note that the value of a penalty unit is updated each year but is valued at $197.59 for the period from 1 July 2024 to 30 June 2025
Mandatory Loss of Licence
DUI offences carry minimum mandatory licence disqualification periods of 2 years for a first offence and 4 years for a subsequent offence. While the court can increase the period of disqualification it can not reduce this period even if you have compelling and exceptional circumstances.
Refusing a breath / blood test
The offence of refusing a preliminary breath test is found at section 49(1)(c) of the Road Safety Act 1986.
The prosecution must prove the following to be successful:
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That you are correctly identified as the offender;
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That you were driving / in charge of a motor vehicle or
a. The police officer believed you were driving / in charge within 3 hours of a collision or
b. The police officer believed you were an occupant of the motor vehicle involved in a collision within the last 3 hours in circumstances where he/she has not been able to establish who was driving. -
The police officer required you to undergo a preliminary breath test in accordance with section 55 of the Road Safety Act; and
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You refused to comply with the demand.
Penalties for refusing a preliminary breath test
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For a first offence this carries a fine of up to 12 penalty units.
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For a second offence you may be fined up to 120 penalty units or imprisoned for up to 12 months.
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For a subsequent offence you can be fined up to 180 penalty units for face prison for up to 18 months.
Mandatory licence loss
This offence carries a mandatory licence disqualification period of 2 years for a first offence and 4 years for a subsequent offence. A Magistrate has no ability to reduce the minimum mandatory period but does have the ability to impose a longer period.
Other Refusal offences
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The offence of refusing to stop/ remain at a preliminary breath testing station exists pursuant to section 49(1)(d) of the Road Safety Act 1986.
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The offence of refusing / failing to undergo a breath test or accompany police for the purpose of a breath test or remain for up to 3 hours for that breath test to be conducted exists within section 49(1)(e) of the Road Safety Act 1986.
Penalties and licence loss provisions for offences under sections 49(1)(d) or (e) are the same as for offences laid under section 49(1)(c).
Possible Defences
There are various defences to various drink driving / refusal offences. They will vary depending on the specific offence but include for example;
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Police attempting to convince you not to have a blood test conducted.
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Police conducting the test outside of time limits
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Police failing to prove you were the driver / in charge at the relevant time.
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The refusal was not conscious and voluntary
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Poorly drafted charges in matters where the statute of limitations have expired. Note that this will be limited according to DPP v Kypri [2011] VSCA 257.
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Defence of substantial character in relation to a refusal to furnish a sample of breath for analysis.
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The requirement to accompany police for a breath test is objectively reasonable. For example asking you to walk kilometres away would not be reasonable in accordance with DPP v Mastwyk.
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The requirement to remain contains sufficient information in accordance with DPP v Rukandin [2011] VSCA 276.
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The request to accompany does not properly state the purpose of the requirement and circumstances justifying it: Mitchell v DPP (2004) 8 VR 192.
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Even if no defence is available, negotiations with police in relation to which charges are to proceed can have a substantial impact on the length of any licence loss and penalty.
How it Works
Step 1
Get in touch using the contact form on this page to book your initial consultation.
Step 2
During your initial consultation, we will discuss your matter and provide answers to your questions
Step 3
Based on the circumstances of your case, I will provide a roadmap for working together.
Frequently Asked Questions
Can the police impound my vehicle if I am caught drink driving?
Yes, if your reading was .10 and in the period of 6 years proceeding the offence you have been found guilty of the same offence or another offence classified as a ‘relevant offence’ (such as dangerous driving) the court may impound or immobilise your car.
If you have been found guilty of the same offence or another ‘relevant offence’ twice or more in the last 6 years proceeding this offence then the court may forfeit the vehicle or a substitute vehicle to the crown.
The legislation does allow for arguments in relation to exceptional hardship and will consider those arguments before deciding whether to impound or forfeit your car.
What if I didn’t know I was over the limit?
Drink driving is an absolute liability offence. That means there is no defence in not knowing you were over the prescribed limit when driving. There is no defence of honest and reasonable mistake of fact: Skase v Holmes (unreported) VSC No 7689/1994.
Will my licence be immediately suspended for this offence?
The police may serve you with a notice that immediately suspends your licence pursuant to section 85 of the Road Safety Act 1968 if for example
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you are on a full licence and your reading was 0.10 of higher,
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if you were on a probationary licence and your reading was 0.07 or higher
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you committed a refusal offence (section 49(1)(c), (d) or (e).
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The offence is a subsequent offence (as defined by section 48(2) Road Safety Act 1986.
Will I have to get an interlock device?
Yes, an interlock condition will be a requirement for any new licence. If your reading was under 0.15 the period will be 6 months unless it is a second offence in which case the period will be 12 months, for a 3rd offence, 4 years. If the reading is more than 0.15 or is a refusal offences that period increases on a second offence to at least 4 years.
The only exemption is if your offence was prior to 1 October 2014 in which case different rules apply.
You will need to apply to Vic Roads to have the interlock condition removed and you will then be subject to a 0.00 alcohol limit for 3 years. Failure to comply with an interlock condition is a criminal offence which may result in further licence loss, fines and vehicle impoundment/ forfeiture.
Book Your Consultation
Get in touch today
To provide the most efficient and cost-effective traffic law service, consultations are done through Zoom or Microsoft teams. Meetings may be arranged on site at Owen Dixon East Chambers Melbourne for an additional fee.
Owen Dixon East Chambers Melbourne VIC 3000
0413 94 1990
Mon - Fri: 9:00 am – 5:00 pm
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