Drink or Drunk Driving Limits, Charges & Types of 0.05 Criminal Offences

There are a number of offences that you can be charged with should you exceed the blood alcohol concentration (‘BAC‘) in Victoria. These charges are contained within the Road Safety Act 1986 (VIC). 

Check your charge sheet or summons, the charge name and the section of the law will be noted on that document.

Driving Under the Influence [section 49(1)(a)] – When someone drives a motor vehicle (car, motorbike, etc) while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the motor vehicle. This is usually proved with the breathalyser reading and/or observations of police about your conduct or driving ability.

Exceeding 0.05 PCA [section 49(1)(b)] – When someone drives a motor vehicle (car, motorbike, etc) while more than the prescribed concentration of alcohol (PCA) is present in his or her blood or breath. This is usually proved by the breathalyser reading. If you are an L-plater, P-plater, taxi driver, bus driver, or person with a “zero” condition on your licence, your reading must be 0.00. If you are a full licence holder, your reading must be under 0.05.

Refuse breath test [section 49(1)(c)] – When someone refuses to undergo a preliminary breath test (‘PBT’) as required under law. Police can require any person they find driving motor vehicle to stop and undergo a PBT at any time. Police can also require a person who they believe has been driving a motor vehicle or has been involved in a car accident within the past 3 hours to undergo a PBT. If you refuse, you may be committing an offence.

Refuse to stop [section 49(1)(d)] – When someone in a motor vehicle refuses or fails to comply with a request or signal given by police to stop and remain stopped. Police must be on duty and in uniform to give the direction. This charge is commonly used if you try to evade a PBT breathalyser station by turning down a side street or U-turning.

If you have been caught with drink driving in Victoria, it is likely that you will be required to attend court. The court you will have to attend will be the Magistrates Court closest to where the offence occurred (or closest to where you live).

If charged with any of the above offences, your licence will most likely have been suspended on the spot pending the outcome of the drink driving case before the court (known as a ‘section 51’ notice). This means that you cannot drive. There are no exceptions and no special licences that you can get to drive during this time. They don’t exist.

The only way that you can try to keep your licence until your matter is finalised in court is to appeal this ‘section 51’ licence suspension under section 51(10) of the Road Safety Act. You must determine your grounds of appeal, give 14 days notice to the police and prosecution of your appeal and serve documents; then your matter will be listed in the Magistrates Court for hearing. You cannot drive during this 14 day notice period. At the appeal hearing, you must demonstrate “exceptional circumstances” as to why your licence should not be cancelled until your court case is heard (for example: the case against you is weak and you have a real chance of winning). You may want to consider getting a lawyer to assist you with this appeal process.

If you choose not to appeal, or are unsuccessful in appealing the ‘section 51’ suspension, you cannot drive until your court case is finalised. However, any time spent off the road will be credited towards any licence suspension you receive at the end of your case.

If you drive during this period of suspension and are caught, you can be charged with another criminal offence “driving whilst suspended”. These charges can carry maximum penalties of large fines, further licence suspension and even jail.

You may find on your charge sheet that the police have charged you with both the s49(1)(a) “DUI” and s49(1)(b) “0.05” charges. These charges typically cover the same conduct and you will generally find that police will withdraw the DUI offence if you are pleading guilty to the 0.05 offence.

As the 0.05 offence is the most common charge pleaded guilty to in the Magistrates Court in Victoria, click here to find out what penalty you are likely to receive under Victorian law for your 0.05 offence.