Charged with Drink Driving in Victoria: What Happens Next?

Pathway at a glance

1. What offence? Identify the exact paragraph of s 49(1) on the charge-sheet or infringement notice.
2. Immediate suspension? Check whether a written suspension or disqualification notice was served.
3. Infringement or court? An infringement may be available for an eligible first PCA offence—or an offence treated as first under s 50AA—below 0.15; you have 28 days to object.
4. How long? Read the minimum period from the tables below. The court can go higher, never lower.
5. Vehicle? Check for an impoundment or immobilisation notice and any later court application.
6. Getting back on the road: behaviour change program, interlock installation and a VicRoads application, then zero-BAC and interlock conditions.

The s 49(1) offences

There is no single “drink-driving” offence. The alcohol limbs of s 49(1) are distinct offences with different elements, evidence and consequences:

• s 49(1)(a) — driving or being in charge of a motor vehicle while under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of it.
• s 49(1)(b) — driving or being in charge while the prescribed concentration of alcohol (PCA) or more is present in the blood or breath.
• s 49(1)(c) — refusing a preliminary breath test required under s 53.
• s 49(1)(d) — as a driver, refusing or failing to stop and remain stopped when required under s 54(3).
• s 49(1)(e) — refusing to comply with an evidentiary breath or blood requirement under s 55(1), (2), (2AA), (2A) or (9A).
• s 49(1)(f) — providing a breath sample under s 55 within 3 hours after driving or being in charge that shows the PCA or more, not due solely to alcohol consumed afterwards.
• s 49(1)(g) — within 3 hours after driving or being in charge, a blood sample taken under the Act is found by an analyst to contain the PCA or more, not due solely to alcohol consumed afterwards.

Paragraphs (bc) and (j) are combined alcohol-and-drug offences, and further paragraphs deal with drugs alone. Those are covered in our guide to drug driving in Victoria. Paragraph (b) is about the concentration at the time of driving. Paragraphs (f) and (g) are about the test result obtained afterwards. They are different charges and should not be treated as interchangeable.

0.05 and zero-BAC limits

The ordinary PCA is 0.05 grams of alcohol per 100 millilitres of blood or per 210 litres of exhaled breath. Under s 52 of the Act, the PCA is zero (any alcohol) for:

• Anyone without a full licence for that vehicle, including learners, probationary (P1 and P2) drivers and unlicensed drivers. There are narrow exceptions, including a recently expired full licence and certain overseas full licence holders in their first months of Victorian residence.
• Heavy vehicle drivers, meaning vehicles with a gross vehicle mass over 4.5 tonnes, and drivers of buses, meaning vehicles built to seat more than 12 adults including the driver.
• Commercial passenger vehicle drivers, including taxi and rideshare drivers providing a service.
• Driving instructors teaching a learner for financial gain or in the course of a business.
• Newer motorcycle riders for 3 years from first obtaining a motorcycle licence, unless the Secretary waives or reduces that period for prior experience.
• Drivers relicensed after a drink- or drug-driving loss, who hold a zero-BAC (Z) condition for at least 3 years, and anyone with an alcohol interlock (I) condition.

The complete statutory list and its exceptions are in s 52 of the Act and the Road Safety (Drivers) Regulations 2019. If you are unsure which applies to you on a particular day, check the conditions printed on your licence.

Driving and being in charge

Section 49(1) applies to a person who drives or is in charge of a motor vehicle. For Part 5 of the Act, s 48(1)(b) and s 3AA narrow “in charge” to people who are attempting to start or drive the vehicle, people whom there are reasonable grounds to believe intended to start or drive it, and a commercial driving instructor or supervising driver while their learner drives. A person is not in charge merely because they attempt or intend to start a vehicle fitted with a working approved interlock.

Whether someone intended to drive is decided on all the facts. Relevant considerations include where the person was sitting, where the keys were and who had them, whether the engine or lights were on, where the vehicle was parked and whether it could be driven, and any steps taken to avoid driving, such as arranging a lift. No single factor decides the question. Sleeping in the car, sitting in the passenger seat or putting the keys elsewhere does not automatically mean you were not in charge.

Breath and blood testing

• Preliminary breath test (s 53). A roadside screening test. A positive result allows police to require further testing; it is not itself the evidence for a PCA charge.
• Evidentiary breath analysis (s 55). Performed on an approved instrument by an authorised operator, usually at a station or in a testing vehicle. You receive a certificate of the result (s 55(4)). You are not obliged to provide a breath sample if more than 3 hours have passed since you last drove or were in charge (s 55(6)).
• Blood instead of breath (s 55(9A)). Police may require a blood sample by a doctor or approved health professional if you cannot provide breath for medical reasons or a physical disability, or the instrument cannot measure your sample. Allowing that sample means you cannot be found guilty of refusing breath analysis (s 55(9C)).
• Your own blood sample (s 55(10)). Immediately after receiving the breath certificate you may ask police to arrange a blood sample, at your own expense, taken in the presence of a police officer.
• Crash and hospital samples (ss 55BA and 56). Blood may be taken from drivers involved in crashes, including in hospital, unless the treating doctor considers it would be prejudicial to proper care and treatment.

Section 48 contains presumptions. For (f), (g) and (j), a reading is presumed not to be due solely to drinking after driving unless you prove otherwise on the balance of probabilities with sworn or affirmed evidence corroborated by another person (s 48(1A)). Separate presumptions help prove the concentration at the time of driving for (a), (b) and (bc) where the sample was taken within 3 hours. Certificates of operators and analysts are admissible as evidence of the facts they state, subject to the Act's notice rules. For a breath-result charge under (f), it is a defence to prove the instrument was not working properly or was not properly operated (s 49(4)).

Refusing a lawful requirement is a separate offence with a heavier minimum licence period than most PCA readings. For evidentiary breath analysis, a court must not find you guilty if you prove a reason of a substantial character for refusing, other than a wish to avoid providing evidence (s 55(9)). That is narrow and should never be relied on in advance.

Immediate licence suspension

Under s 85, once a charge-sheet has been filed, any police officer may suspend a Victorian driver licence or learner permit by written notice if the charge is:

• a PCA offence under s 49(1)(b), (bc), (f), (g) or (j) with an alleged reading of 0.10 or more for a full licence holder or 0.07 or more for a learner or probationary driver;
• a refusal or failure offence under s 49(1)(c), (d) or (e); or
• any offence that would be a subsequent offence under s 48(2).

Section 85B separately allows suspension within 12 months of an evidentiary breath or blood certificate at those same thresholds, or at any reading over the PCA if you have a relevant finding of guilt in the previous 10 years. A certificate-based suspension lasts 12 months or the Schedule 1 period for the reading, whichever is shorter. Drivers with an interstate or overseas licence, or no licence, receive an equivalent immediate disqualification from driving in Victoria under Part 6C.

The suspension begins when the notice is served. A charge suspension lasts until the charge is determined or withdrawn, or the suspension is cancelled on appeal (s 85C). You must surrender any physical licence card; a digital licence does not need to be surrendered. Driving while suspended is a separate serious offence (see our guide to driving while suspended or disqualified).

You may appeal to the Magistrates' Court under s 85S. You must give the Chief Commissioner of Police and a registrar at least 14 days' written notice, setting out the alleged exceptional circumstances. The court may confirm or cancel the suspension but may cancel it only if satisfied that exceptional circumstances justify doing so (s 85T). Ordinary inconvenience or loss of work is rarely enough.

Infringement or court

Police may issue a traffic infringement notice only for a “drink-driving infringement”: a PCA offence under s 49(1)(b), (f) or (g) with a reading below 0.15 that is a first offence having regard to s 48(2), or would be treated as a first offence for s 50(1A) because of s 50AA (s 3(1)). In other words, an infringement notice may be available for an eligible first offence—or an offence treated as a first offence under s 50AA—where all statutory conditions are satisfied. Under-the-influence, refusal and 0.15-plus offences must go to court, as must an offence that remains subsequent after s 50AA is applied.

Section 50AA requires a conviction or finding of guilt recorded 10 years or more before the commission of the new offence to be disregarded when deciding whether the new offence is a first offence for s 50(1A), if counting it would otherwise make the new offence subsequent. It does not automatically make every case involving an older offence eligible: the full history and every condition in the statutory definition still need to be checked.

Under Schedule 7 of the Road Safety (General) Regulations 2019, the infringement penalty is 3 penalty units ($627.30 in 2026–27) below 0.07 and 4.25 penalty units (about $889) from 0.07 to below 0.15. The licence consequence (s 89C) is cancellation and disqualification for 3 months if you were aged 26 or over, s 52 did not apply and the reading was 0.05 to below 0.07. In every other case the Schedule 1 first-offence period applies.

If you do nothing, or pay, the notice takes effect as a conviction 28 days after its date (s 89A), and the cancellation starts then. That is why a drink-driving infringement should not be treated as an ordinary fine. To object, you give written notice within the 28 days stating that you refuse to pay, request that the matter be dealt with by a court and say whether you intend to defend any charge. The infringement is then cancelled and police may proceed only by filing a charge. If the notice was not personally served and you were unaware of it, s 89B allows an application within 14 days of becoming aware.

Electing court exposes you to a higher maximum fine, possible costs and, for an eligible driver aged 26 or over at 0.05 to below 0.07, a 6-month rather than 3-month minimum. It may be justified where there is a real evidentiary dispute or a realistic prospect of a non-conviction outcome. For court procedure, see our Magistrates' Court criminal and traffic guide.

Penalty and licence tables

Table 1 shows the minimum cancellation and disqualification for PCA offences under Schedule 1 of the Act, applied by s 50(1A) in court. Periods are minimums.

* Via an infringement, 3 months if aged 26 or over and not subject to zero BAC. A reading below 0.05 is an offence only for zero-BAC drivers. Under-the-influence and refusal or failure offences carry a minimum 2 years (first) or 4 years (subsequent) under s 50(1B).

Table 2 compares offence types. PU means penalty units; dollar figures are approximate 2026–27 equivalents and are maximums, not typical fines.

Vehicle impoundment applies separately; see below. The Magistrates' Court may set a disqualification above the minimum, and in practice the fine and other orders depend on the circumstances.

No work or hardship licence

Cancellation ends your licence; disqualification prevents you from obtaining a new one for the stated period. (Suspension, by contrast, temporarily stops a licence that otherwise continues.) Victoria has no work, restricted or hardship licence for a drink-driving disqualification. A court must impose at least the statutory minimum and cannot reduce it because of employment, caring responsibilities, rural isolation or medical need. Even where a court finds the charge proven without recording a conviction, the mandatory cancellation and disqualification still apply. Plan transport before the period starts: driving while disqualified carries its own penalties and further licence loss.

Prior and subsequent offences

Whether an offence is “first” or “subsequent” is decided by s 48(2). It counts earlier convictions or findings of guilt for any s 49(1) offence, equivalent earlier Victorian provisions, corresponding interstate laws and certain Sentencing Act offences committed under the influence. In general there is no time limit, and an infringement that took effect as a conviction counts. Some calculations differ:

• s 50AA requires a conviction or finding of guilt recorded 10 years or more before the new offence to be disregarded for the Schedule 1 minimum if counting it would otherwise make the new offence subsequent. A more recent qualifying offence may still make the new offence subsequent.
• Immediate suspension on a certificate uses a 10-year window (s 85B).
• Impoundment uses a 6-year window of “relevant offences” (s 84C).

A subsequent offence excludes an infringement, roughly doubles the minimum licence period, increases maximum penalties including imprisonment, triggers immediate suspension, extends interlock periods and may require a second-stage behaviour change program. Always obtain and check the prosecution's alleged prior history, including dates, jurisdiction and the offence recorded.

Vehicle impoundment

Under Part 6A of the Act, police who reasonably believe a vehicle was used in a “relevant offence” may seize it and impound or immobilise it for the 30-day designated period (s 84F). For drink driving, a relevant offence is:

• any PCA offence under s 49(1)(b), (bc), (f), (g) or (j) at 0.10 or more; or
• a lower PCA reading (or any reading for a zero-BAC driver) where the driver committed a relevant offence within the previous 6 years.

After a finding of guilt, if the driver committed another relevant offence in the previous 6 years, the court on the police application must order impoundment for 45 days (or up to 3 months in total) or forfeiture (s 84S). With two or more prior relevant offences in 6 years, the court may order forfeiture, and if it declines must order impoundment (s 84T). The vehicle need not belong to the driver. A registered operator can resist an order by proving the offence occurred without their knowledge or consent (s 84Z), and a person facing exceptional hardship may apply for early release (s 84O). Towing and storage costs are generally payable to recover the vehicle, but are refunded if the driver is found not guilty or no charge proceeds within 12 months (s 84R). These vehicle sanctions are separate from the licence consequences and the sentence.

Programs, interlocks and relicensing

Your licence does not return when the disqualification ends. For an alcohol-only s 49(1) offence, you apply directly to VicRoads (s 31KA); a court licence eligibility order is not required. Typically you must:

1. Complete a behaviour change program. VicRoads cannot issue a licence until you finish the first-stage program named in your notice (s 58C). The program type depends on the offence, reading and history, and you can usually start it during the disqualification period.
2. Install an interlock. An approved supplier fits the device to the vehicle you will drive and signs your installation certificate. Supply, installation, servicing and data costs are paid by you and vary by provider.
3. Apply to VicRoads after the minimum period, with the required certificates, and pass any tests VicRoads requires.

The new licence carries a zero-BAC (Z) condition for at least 3 years and, in almost all cases, an interlock (I) condition. The minimum interlock period under Schedule 1B is 6 months for a first offence, 12 months for a second PCA offence below 0.15, and 4 years in other repeat cases. Time without a licence does not count. Removal is not automatic: you must apply, and VicRoads assesses at least the final months of device data for failed tests, tampering and missed services to see whether you have separated drinking from driving. Some drivers must also complete a second-stage program. Violations can extend the period. Driving a vehicle without an interlock while the condition applies is an offence.

What if your licence expired more than five years ago?

Completing the drink-driving requirements does not revive an expired licence. Current VicRoads guidance says that if a Victorian licence has expired for more than five years, you must complete the tests that apply to the licence you previously held. For an ordinary car driver licence, this ordinarily includes the Learner Permit Test and a drive test. Different testing requirements apply to car learner permits, heavy-vehicle licences, motorcycle licences and marine licences; check the current VicRoads renewal table for your licence type. These expiry-based tests are separate from any behaviour-change program, alcohol-interlock or zero-BAC conditions.

What can be contested

The mandatory licence period is not contestable, but the charge itself may be. Issues depend on the paragraph charged and the evidence, and may include:

• identity, and whether you drove or were in charge;
• whether each element of the specific paragraph is proved;
• whether the requirement to test was lawful and made within time;
• whether presumptions and certificates apply on the facts;
• post-driving drinking, which requires corroborated sworn or affirmed evidence;
• instrument operation or blood sample handling and analysis;
• medical inability or a substantial reason in a refusal case; and
• the reliability and continuity of the evidence.

A procedural irregularity is not a loophole. It matters only if it affects proof of an element or the admissibility of evidence. Get advice on the brief before making decisions or admissions. See our guide on police interviews.

Diversion

Diversion is generally unavailable. Section 59(1)(a) of the Criminal Procedure Act 2009 (Vic) excludes offences punishable by a minimum or fixed penalty, including licence cancellation or disqualification, and s 59(1)(b) excludes every other offence against s 49(1) of the Road Safety Act. Diversion ends without a finding of guilt; a non-conviction sentence is a finding of guilt without a recorded conviction; an infringement takes effect as a conviction. See our diversion eligibility guide.

Sentencing and plea preparation

Under the Sentencing Act 1991 (Vic), the court considers the reading and offence type; the manner, duration and location of the driving; passengers and any crash; prior history; an early plea and cooperation; remorse and insight; alcohol assessment, counselling or treatment; progress in a behaviour change program; character references; employment and caring consequences; financial circumstances relevant to a fine; and prospects of rehabilitation. This material can affect the fine, any community or custodial order, whether a conviction is recorded and whether the licence period exceeds the minimum. It cannot reduce the minimum.

Keep or obtain:

• the charge-sheet or infringement notice, breath or blood certificates and any suspension, impoundment or VicRoads notices;
• the prosecution brief and alleged prior history;
• a written timeline of drinking, food, driving and testing;
• treatment, counselling or program records;
• references, and evidence of employment, caring and financial circumstances.

Crashes and combined offending

A crash may bring other charges, depending on what happened: careless driving (s 65) or dangerous driving (s 64) under the Road Safety Act; failing to stop, give assistance or exchange details (s 61); or, where life was endangered or someone was injured or killed, Crimes Act 1958 offences such as dangerous or culpable driving. Not every crash leads to extra charges, and those offences have their own penalties. Combined alcohol-and-drug offences carry higher minimums under Schedule 1AB. Civil claims, TAC compulsory third-party issues and insurance exclusions for driving over the limit can follow regardless of the criminal outcome. Notify your insurer as your policy requires, stating facts without unnecessary admissions.

Records and collateral consequences

A court finding of guilt remains a finding whether or not a conviction is recorded. Under the Spent Convictions Act 2021 (Vic), findings of guilt without conviction and infringement convictions are generally spent immediately. Most other adult convictions for non-serious offences are spent after a 10-year period without further convictions. Your VicRoads driving history is separate and still records the offence and licence action. Spent convictions can still be disclosed for some statutory purposes, such as Working with Children checks and some professional-registration and firearms assessments. Visa, immigration, employment, professional-registration, insurance and overseas travel questions each use their own rules and wording, so read each question carefully and get advice before answering.

What to do now

• Do not drive while suspended or disqualified.
• Keep every notice, certificate and infringement document.
• Write down the timeline while it is fresh.
• Identify the exact s 49(1) paragraph charged.
• Obtain the alleged prior-history record.
• Diarise the 28-day infringement, 14-day suspension-appeal notice and court dates.
• Arrange assessment, treatment or a behaviour change program where appropriate.
• Do not assume work needs will change the minimum period; plan transport now.
• After a crash, notify your insurer as required without avoidable admissions.
• Comply with police requirements and never interfere with evidence.

Frequently asked questions

Official sources

• Road Safety Act 1986 (Vic) — authorised version 236
• Road Safety (Drivers) Regulations 2019 (Vic)
• Road Safety (General) Regulations 2019 (Vic)
• Criminal Procedure Act 2009 (Vic)
• Sentencing Act 1991 (Vic)
• Spent Convictions Act 2021 (Vic)
• Transport Victoria — Drink driving penalties
• Transport Victoria — The Victorian Alcohol Interlock Program
• Transport Victoria — Get your licence back after drink and/or drug driving
• VicRoads — Renew your licence after it has expired
• Magistrates’ Court of Victoria — Alcohol interlocks
• Department of Treasury and Finance — Indexation of fees and penalties (2026–27 penalty unit)
• Victoria Legal Aid — Drink driving

How Parke Lawyers can help

We can review the brief and certificates, confirm the paragraph charged and the applicable minimums, advise whether to object to an infringement, prepare a suspension appeal or impoundment hardship application, prepare a plea or contest, and explain relicensing and interlock requirements. We do not promise outcomes; we apply current law carefully to your facts.