Drink Driving & Driving Under the Influence of Alcohol (DUI) – Exceeding 0.05 BAC

If you get stopped at a booze bus or pulled over by police in Victoria, you will be required to give police a ‘preliminary breath test’ (PBT). You will be asked to blow continuously into a hand held breathalyser machine which will tell police if there is alcohol on your breath. It can be an offence to ‘refuse a breath test’.

Police also have the right to breath test you if they believe on reasonable grounds that you have, within the last 3 preceding hours, driven or been in charge of a motor vehicle when it was involved in an accident. You can also be breath tested if you were an occupant in a vehicle if police have not been able to establish who was driving at the time of the accident.

You are not obliged to undergo a preliminary breath test if more than 3 hours have passed since you last drove, were an occupant of a vehicle or were “in charge” of a motor vehicle. You do not have to have been actually driving a vehicle to be able to be breathalysed. You can simply be “in charge” of a motor vehicle. “In charge” of a motor vehicle can include attempting to start a car or if a police officer has a reasonable belief that you intended to start the car.

After you have been breathalysed by the hand-held device, if there is alcohol on your breath, police will ask you to accompany them to the booze bus or back to a police station. They will then ask you to take another test called an ‘evidentiary breath test’ which is another machine that you must blow continuously into which will produce a print out of your blood alcohol content (‘BAC’). This is the reading that will be used as evidence in court. It can be an offence to ‘refuse a breath test’.

When you are with police in the booze bus or back at the police station, police will ask you some questions about your drinking. They will take note of your answers and may use them in evidence against you. Most people want to be helpful to police, but it is important to note that you are not required to answer these questions as you always have the right to remain silent. The only exception to this is that you must give your name and address to police if they suspect you of committing an offence (such as drink driving).

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

Most likely, you will have received a ‘summons‘ from the police and will have a pending court date. This date is called the ‘first mention‘ and is the first listing of your matter where you can attend court and tell the magistrate that you want to plead guilty, not guilty, or that you need more time (an ‘adjournment’) to get your case prepared.

Your licence will most likely have been immediately suspended 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. 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.

There aren’t many defences to drink driving cases, so most people choose to plead guilty. You should consult with a lawyer if you think you have a defence (eg: error with the breathalyser). Please note that “I didn’t realise I was over the limit” is rarely a viable defence.

Some people refer to drink/drunk driving as a “DUI” (driving under the influence). Although this is commonly an American term, there is in fact a DUI offence under Victorian law. However, in Victoria, police generally deal with driving and alcohol offences with charge of “exceeding the prescribed concentration of alcohol (PCA)”. This is also known as exceeding 0.05.

There are two main charges that deal with driving under the influence of alcohol in Victoria:

  • The first is what many refer to as a DUI charge (section 49(1)(a) of the Road Safety Act). In order to prove this charge, the police must show that you were under the influence of alcohol to such an extent as to be incapable of having proper control of your car. This is a very high standard and can be difficult to prove.
  • The second is what many refer to as the exceeding 0.05 charge (s49(1)(b) of the Road Safety Act). Police must show that your blood alcohol concentration was over 0.05. This charge is proved by police relying on the blood alcohol concentration produced from the breathalyser.

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.