Charged with Drink Driving in Victoria: What Happens Next?

The Alcohol Offences Under s 49(1)

There is no single "drink driving" offence in Victoria. Section 49(1) of the Road Safety Act 1986 (Vic) creates a series of distinct offences, each with its own elements. The alcohol-related limbs include:

• Section 49(1)(a) — Under the influence. Driving, or being in charge of, a motor vehicle while under the influence of intoxicating liquor (or a drug) to such an extent as to be incapable of having proper control of the vehicle.
• Section 49(1)(b) — Prescribed concentration at the time. Driving, or being in charge, while the prescribed concentration of alcohol (PCA) or more than the prescribed concentration of alcohol is present in blood or breath.
• Section 49(1)(f) — Breath within 3 hours. Furnishing a sample of breath under s 55 within 3 hours after driving or being in charge that indicates the PCA or more, where the presence of that concentration is not due solely to alcohol consumed after driving or being in charge.
• Section 49(1)(g) — Blood within 3 hours. Having a sample of blood taken within 3 hours after driving or being in charge, the analysis of which shows the PCA or more, where the presence of that concentration is not due solely to alcohol consumed after driving or being in charge.
• Section 49(1)(c), (d) and (e) — Refusal and failure to comply. Refusing a preliminary breath test under s 53 (s 49(1)(c)), failing to stop and remain stopped for a preliminary breath test under s 54(3) (s 49(1)(d)), and refusing or failing to comply with a requirement under s 55 in respect of evidentiary breath analysis or a blood sample (s 49(1)(e)). Other paragraphs of s 49(1) deal with drug driving and combined offences and are not addressed in this article.

These offences are not interchangeable. The particular paragraph charged affects the elements the prosecution must prove, the applicable minimum licence disqualification, whether immediate suspension is available and how the matter should be prepared.

Who Must Have Zero BAC and Who Is on 0.05

The prescribed concentration is not the same for everyone. As a general position, fully licensed drivers are subject to a PCA of less than 0.05. A zero BAC requirement applies to a number of statutory categories, which currently include:

• learner permit holders;
• probationary licence holders;
• drivers of a motor vehicle with a Gross Vehicle Mass of more than 4.5 tonnes;
• driving instructors while giving instruction;
• drivers of commercial passenger vehicles (including taxis and rideshare) while carrying passengers or available to do so;
• drivers of a bus or of a vehicle carrying larger numbers of passengers;
• motorcycle riders during any statutory restricted post-licensing period; and
• drivers subject to a zero BAC licence condition, including Z-condition and alcohol interlock (I) condition holders.

This is a summary, not an exhaustive list. The categories subject to a zero BAC requirement are defined by the Road Safety Act 1986 (Vic) and its regulations, and can change. The limit that applies to a particular driver on a particular day should be confirmed against the current legislation before any plea is entered.

"Driving" vs "In Charge"

Section 49(1) applies both to driving a motor vehicle and to being in charge of a motor vehicle. "In charge" is a legal concept that can extend to circumstances in which the person is not actively driving at the moment of the police interaction. Whether a person was in charge in particular circumstances — for example, sitting in a stationary vehicle in a car park — is a question of fact and law and is not resolved by any single rule about the location of keys or the seat occupied.

Sections 49(1)(f) and (g) apply to breath or blood samples taken within 3 hours after driving or being in charge, subject to the statutory framework. Post-driving readings therefore matter and there are no reliable generalisations about how much time or intervening consumption will affect a case. Anyone facing an "in charge" or post-driving reading allegation should get advice on the specific facts before making admissions.

Roadside, Evidentiary and Blood Testing

The Road Safety Act 1986 (Vic) sets out graduated testing powers:

• Preliminary breath test. A roadside screening test. A positive result does not itself prove an offence — it authorises a further requirement to undergo evidentiary testing.
• Evidentiary breath analysis (s 55). Conducted at a police station or in an evidentiary testing vehicle. The result and the operator's certificate are the material commonly relied on in court.
• Blood sample. Required or authorised in defined circumstances, including where breath testing is not practicable or following certain incidents involving injury.

The Act gives specified evidentiary status to certificates produced by operators and analysts. Separately, s 48 of the Act contains interpretative presumptions relevant to specified offence limbs — including a presumption about the concentration present at the time of driving for offences under s 49(1)(a), (b) and (bc), and a different provision addressing the post-driving consumption element in s 49(1)(f) and (g). Sections 49(1)(f) and (g) are themselves separate offences based on a qualifying breath or blood result within 3 hours of driving or being in charge, together with their other elements; they do not simply "treat" a within-3-hours reading as the reading at the time of driving. The precise operation of these provisions is technical, should not be paraphrased loosely, and should be checked against the in-force Act. A device reading is not automatically conclusive in every case, but the statutory presumptions are strong and procedural arguments are technical. They are not generic loopholes: whether an issue is actually available in a particular matter depends on the evidence and requires case-specific advice. Any paperwork provided by police should be preserved and given to a lawyer at the earliest opportunity.

Immediate Licence Suspension

Immediate licence suspension is dealt with by s 85 of the Road Safety Act 1986 (Vic). It empowers a police officer to serve an immediate suspension notice in the circumstances identified in that provision, which include specified higher-range PCA readings, refusal offences under s 49 and certain other s 49(1) offences identified in the section. Immediate suspension is not attached to every drink driving charge — whether it applies depends on the particular paragraph charged and the reading.

Where immediate suspension applies, the notice generally takes effect on service and continues until the charge is determined. A driver may apply to the Magistrates' Court for review on the grounds set out in the Act. Because the exact triggers, commencement and review pathway turn on the specific offence and reading, the current terms of s 85 (and any related provisions) should be checked promptly, and legal advice obtained without delay.

Infringement or Court Pathway

How the matter proceeds depends on the offence and the driver:

• Infringement notice. For some limited categories of alcohol offence — typically low-range PCA readings by full licence holders in defined circumstances — an infringement notice may be issued instead of a charge and summons. Finalising an infringement has statutory consequences and ordinarily entails the prescribed licence sanction for the offence; it is not the same as a court conviction and does not necessarily appear in every criminal-history disclosure, but the underlying event and its licensing consequences remain and how it is disclosed later depends on the particular scheme and question asked. Whether an infringement is available in a particular case depends on the current legislation and police policy.
• Charge and summons. Most alcohol driving matters — including higher readings, zero BAC drivers, refusals, "in charge" and post-driving readings, and repeat matters — proceed by charge and summons to the Magistrates' Court of Victoria.

There is no general assurance that a first offence will stay out of court. Whether court is required is set by the legislative framework, not by the driver's history alone.

Court Penalties and Mandatory Licensing

For each s 49(1) offence the Road Safety Act and the Sentencing Act 1991 (Vic) provide:

• Maximum criminal penalties (fines and, for some offences, imprisonment) that a magistrate may impose within the ordinary sentencing discretion; and
• Mandatory minimum licence cancellation and disqualification periods that the court must impose on a finding of guilt, which vary with the reading, the offence limb, the driver's age and licence class and whether the matter is a first or subsequent "appropriate" offence.

Sentencing discretion applies to the criminal penalty, but the licensing outcome is largely fixed by legislation. That is why an alcohol driving charge is rarely just a "fine": it carries a mandatory licensing consequence.

Because the applicable numbers are updated from time to time, this article does not publish a penalty table. The current figures for a specific charge should be checked against the in-force Act at the time. A finding of guilt without conviction under the Sentencing Act can still carry the mandatory licence consequence and other collateral effects; a "no conviction" order is not equivalent to no legal outcome.

Interlocks, Behaviour Change and Relicensing

Following the disqualification period, a person seeking to return to driving after an alcohol offence generally faces:

• Application to VicRoads for relicensing. A licence is not restored automatically at the end of a disqualification period. The person must apply and satisfy statutory and administrative requirements.
• Behaviour change program. Completion of a Department of Transport-approved behaviour change program is generally required before applying to VicRoads.
• Alcohol interlock condition. An interlock condition is generally imposed for a specified period on relicensing after an alcohol driving offence, under the interlock scheme in the Road Safety Act and associated regulations. The duration and eligibility to remove the condition depend on the offence, the reading and the driver's history.
• Zero BAC condition on relicensing. A person returning to driving after an alcohol offence is generally subject to a zero BAC requirement for a specified period.

Court orders, statutory requirements and administrative VicRoads requirements interact and are not identical. Nothing about the return to driving is automatic and nothing about it should be assumed without checking the position for the specific offence.

Diversion and Drink Driving

Diversion under s 59 of the Criminal Procedure Act 2009 (Vic) is generally not available for alcohol driving offences. Section 59(1)(a) excludes offences carrying a minimum or fixed penalty (expressly including mandatory licence cancellation, suspension or driving disqualification), and s 59(1)(b) separately excludes any offence against s 49(1) of the Road Safety Act 1986 not already caught by paragraph (a). The practical effect is that ordinary s 49(1) alcohol charges fall outside diversion.

Defences and Contesting a Charge

Where a driver wishes to contest a charge, the issues that may arise depend on the paragraph charged and the evidence. They can include:

• Identity and driving/in-charge. Whether the person alleged was in fact the driver or the person in charge at the relevant time.
• Elements of the offence. Whether the elements of the particular s 49(1) paragraph are proved — for instance whether the person was under the influence to the requisite extent under s 49(1)(a).
• Testing procedures and evidentiary framework. Whether the testing and certification requirements in the Act have been complied with, having regard to the statutory presumptions. Procedural points are technical and not always determinative.
• Timing and post-driving matters. Whether the 3-hour window in s 49(1)(f) or (g) is engaged and whether any statutory framework about post-driving consumption is in issue.
• Other issues. Any other issue specific to the charge and the evidence.

A defect on the face of a document is not, on its own, a defence. Whether an issue is actually available in a given case is fact and law specific. Nothing in this article is advice to evade a lawful requirement.

Refusal Offences

Alcohol-related refusal and failure offences under s 49(1) include refusing a preliminary breath test under s 53 (s 49(1)(c)); failing to stop and remain stopped for a preliminary breath test under s 54(3) (s 49(1)(d)); and refusing or failing to comply with a requirement under s 55 in respect of evidentiary breath analysis or a blood sample (s 49(1)(e)). Each is a separate offence carrying its own penalties and mandatory licensing consequences, and (in respect of s 55 refusals) is dealt with by the Act broadly on the same footing as high-range PCA offences; each can attract immediate licence suspension in its own right. Refusal is itself an offence with serious penalty and licensing consequences and is not a lawful or reliable way to improve the outcome — a refusal charge may proceed irrespective of whether a PCA result was obtained. Nothing in this section is advice to evade a lawful requirement.

Crashes, Injury and Combined Offences

If a crash is alleged, additional charges may arise — for example careless driving, dangerous driving, conduct endangering, or where injury or death has occurred, more serious offences under the Crimes Act 1958 (Vic) and other legislation. These are separate from and in addition to the s 49(1) charge and have their own consequences.

Where alcohol and drugs are both alleged, drug driving offences under s 49(1) apply separately and can be charged in addition. For drug-related driving allegations, see our offence-specific guide on drug driving in Victoria. Civil, insurance and workplace consequences may also follow from a crash regardless of the criminal outcome.

Record, Insurance and Collateral Effects

A finding of guilt for an alcohol driving offence generally results in a record of the matter, subject to the spent-convictions scheme in Victoria under the Spent Convictions Act 2021 (Vic) and any applicable disclosure or exception rules. A "no conviction" order under the Sentencing Act does not erase the underlying record for all purposes. Disclosure obligations for employment probity checks, professional registration, insurance, working with children and vulnerable persons, firearms and overseas travel depend on the specific scheme and question asked. Take advice before answering disclosure questions.

How a Lawyer Can Help

Parke Lawyers regularly appears in the Magistrates' Court on drink driving charges. Depending on the matter, we can:

• Obtain and review the brief — including testing certificates, operator statements and any incident material.
• Advise on the paragraph charged, the elements, the applicable prescribed concentration and the applicable mandatory licensing consequences.
• Advise on immediate licence suspension and, where available, prepare a review application within any applicable time limit.
• Advise on infringement versus court pathways where an infringement has been offered.
• Prepare a plea or contest, including references, evidence of counselling or program completion and other supporting material.
• Advise on interlocks, behaviour change programs and relicensing.

We do not promise particular outcomes. What we do is apply careful, current law and prepare the matter properly.

Frequently Asked Questions

For related traffic and criminal-law reading, see our guides on the Magistrates' Court criminal and traffic list, driving while suspended or disqualified, and what to do if the police want to interview you. For our full offering, see Criminal & Traffic Law services.

If you have been charged with a drink driving or other traffic offence in Victoria, contact Parke Lawyers.