Drink driving is a serious traffic offence in Victoria and can result in fines, licence consequences and, in more serious circumstances, imprisonment. If you have been charged or are being investigated, traffic offence lawyers Melbourne can help explain the classification of the alleged offence and the potential consequences.
A common question is is drink driving a summary offence, or can it be treated as an indictable offence? The answer depends on the particular offence, the circumstances surrounding the alleged conduct and whether other serious offending is involved.
Is Drink Driving a Summary or Indictable Offence?
Most standard drink driving offences in Victoria are dealt with as summary offences. This means they are generally heard in the Magistrates' Court rather than being prosecuted as indictable offences in a higher court.
However, not every matter involving alcohol and driving is necessarily treated in the same way. The circumstances can become considerably more serious where the alleged conduct involves factors such as dangerous driving, serious injury or death, or other criminal offences.
The precise classification depends on the charge laid and the legislation that applies to the circumstances.
What Is the Legal Alcohol Limit?
Victorian drink driving laws apply different blood alcohol concentration (BAC) limits depending on the driver's circumstances.
For many fully licensed drivers, a BAC of 0.05 or more can constitute an offence. Lower limits can apply to certain drivers, including learner and probationary drivers and some professional or commercial drivers.
A driver may face consequences even where they do not feel significantly affected by alcohol. The relevant BAC reading and the circumstances of the driver are important factors in determining the applicable offence.
When Can Drink Driving Become More Serious?
A straightforward drink driving charge is different from allegations involving serious dangerous driving or harm to another person.
Aggravating circumstances may include:
A very high BAC
Driving at a dangerous speed or in a dangerous manner
Previous drink driving or related offending
Driving while disqualified or suspended
Negligence
Culpable conduct
Causing serious injury to another person
Causing a person's death
A combination of alcohol and other substances
Attempting to evade police
Where the alleged conduct involves serious injury or death, separate and more serious criminal charges may apply. These offences can have substantially higher maximum penalties than ordinary drink driving offences.
What Penalties Can Apply?
The consequences of a drink driving offence depend on the particular charge and the circumstances of the offending.
Possible consequences can include:
Fines
Licence cancellation or disqualification
Requirements relating to alcohol interlock devices
Behavioural or educational programmes
Community-based orders where available
Imprisonment for sufficiently serious offending
A criminal record
The court does not automatically impose the maximum available penalty. Sentencing can take into account factors such as the seriousness of the offending, the driver's prior history, BAC level, driving circumstances, personal circumstances and any guilty plea.
What Happens in Court?
If a drink driving matter proceeds to court, the accused driver will generally need to respond to the charge and attend the relevant court.
The prosecution may rely on evidence such as breath or blood test results, police observations, statements from witnesses, police body-worn camera footage, dash camera footage, crash data retrieval information in certain motor vehicles, and other evidence concerning the circumstances of the driving.
The defence can examine whether the prosecution has established the required elements of the offence. Depending on the circumstances, issues may arise concerning the reliability of testing, the circumstances in which a sample was obtained, identification of the driver or the accuracy and admissibility of other evidence.
Are There Possible Defences?
The available defence depends on the precise allegation and evidence.
Potential issues may include:
Whether the accused was actually driving the vehicle
Whether the BAC result is reliable
Whether testing procedures were properly followed
Whether the prosecution can establish the relevant legal elements
Whether there are factual inconsistencies in the prosecution evidence
Whether exceptional circumstances are relevant to sentencing or other court considerations
A defence is not available simply because a driver believes they were incapable of driving. The prosecution must prove the relevant elements of the offence according to the applicable legal standard.
Why Does the Classification Matter?
Understanding is drink driving a summary or indictable offence is important because the classification can affect where the matter is heard, how the proceedings progress and the potential penalties involved.
A standard drink driving charge may be dealt with relatively differently from an allegation involving dangerous driving causing serious injury or death. The latter can involve significantly more serious criminal consequences.
Anyone facing a drink driving charge should obtain legal advice based on the specific charge, BAC result, driving circumstances and prior history.
Conclusion
Most ordinary drink driving offences in Victoria are summary matters, but alcohol-related driving can form part of more serious criminal allegations where aggravating circumstances are present. The applicable charge, court process and potential penalty depend on the facts of each case.
If you are facing a drink driving charge, obtaining legal advice early can help you understand the allegation, assess the prosecution evidence and determine what options may be available.
This article provides general legal information only and should not be relied upon as legal advice for a specific situation.