Have you been charged with a drink driving offence in Victoria? If you’re worried about what’s going to happen next, we’ve compiled a helpful guide below covering the key facts to help guide you on what to do.
If you’re caught operating any vehicle over the legal alcohol limit, meaning your blood alcohol concentration (BAC) is higher than 0.5% or you are on a zero BAC licence like a P plate, learner permit, or taxi driver licence, we urge you to speak to a criminal lawyer in Melbourne CBD about the criminal charge you’re facing.
Charges can include:
- Driving under the influence of alcohol
- Driving with both drugs and alcohol in your system
- If you’ve been found guilty of a drink driving or drug driving offence before
Drink driving is a serious offence and it’s normal to feel overwhelmed or stressed. The first step is to engage a criminal lawyer like James Dowsley & Associates, who are highly skilled defence lawyers and have extensive experience with alcohol-related criminal cases.
If you or a friend or family member have been charged with a drink driving offence, you’ll likely have lots of questions:
- How can I get out of a drunk driving charge in Australia?
- Does a drink driving charge go on your criminal record?
- How do I deal with a drink driving charge?
- How serious is this going to be?
- Will I be banned from driving?
The answer to all the above questions is, quite simply, “it depends”.
We’ll carefully examine the situation around your drink-driving charge: your history, all the facts, and the unique circumstances will shape the case we can present on your behalf.
The magistrate or judge will take into account the licence you hold, the situation under which you were stopped or the incident that occured, how much alcohol was in your system at the time of the tests, and if anyone was hurt.
What are the different types of charges?
The main drink driving offences are:
- Driving under the influence of alcohol
- Driving with both drugs and alcohol in your system
- If you have been found guilty of a drink-driving or drug driving offence before
If you were caught and charged with a drink driving offence, the penalty depends on:
- Driving above the legal limit 0.5%
- Driving above the legal limit for your licence (for example if you are a P plater, on a learner permit, or a taxi driver, there is a zero alcohol limit)
Depending on your licence type, driving with any or a certain amount of alcohol in your system is illegal and is a criminal offence.
For example, if you have an infringement for drink driving and you are over 26 years of age, licensed and your BAC is under 0.07, the minimum licence cancellation is three months.
Another example is if you are required to drive with a zero alcohol licence and your BAC was less than 0.05, the magistrate may cancel your licence and disqualify you from driving for at least three months.
There are set parameters around the BAC levels and the minimum disqualification time, and they will also take into account whether or not this is your first offence.
What happens if I’m caught with both drugs and alcohol in my system?
Drivers who are caught with both drugs and alcohol in their system, or only drugs in their system, will face harsh penalties in Victoria – ensure you call an expert drug offence lawyer in Melbourne to defend you.
If you’re stopped by police, they’ll make an initial assessment based on the physical factors, like your behaviour, balance and coordination. They then may request a blood or urine sample at a mobile test or at the police station.
If drugs are found in your system following the test, you may be charged with Driving While Impaired. The penalties for drug-driving depending on whether this is your first offence and there are a range of penalties that may apply, including but not limited to:
- A fine of penalty units
- Possible imprisonment
- Having your licence suspended or cancelled
- Requirement to complete an Intensive Drink and Drug Driver Behaviour Change program
- Having a zero BAC condition for three years
- The court may also record a conviction
How can I get out of a drink driving charge in Australia?
In Australia, the law is very clear about what’s required to prove someone guilty of a drink driving charge.
That being said, the onus is on the prosecution to present the facts to the court beyond reasonable doubt, so depending on the circumstances it might be possible to get out of a drink driving charge.
Your defence is where we shine as experienced criminal lawyers in Melbourne.
The drink driving charge is identified from a breath test at the roadside, followed by a confirmed blood test (via a booze bus or at a police station).
If in the event your breath indicates a BAC which is higher than the legal limit of your licence, the police may let you know the immediate penalties that apply and whether or not you’ll be required to go to court.
- The police may immediately suspend your licence until your court date
- This might mean you can’t drive as there is a suspension on your licence
- This means you need to find another way home
- They may confiscate (impound) your car immediately
- You may be asked to attend a police station for a second breath test
- You will receive a summons to attend court on a certain date
Does a drink driving charge go on your criminal record?
Drink driving is considered a serious offence in Victoria and is treated just as seriously within the court and criminal system.
Unless you are found not guilty of the offence in question, if you do go to court, there may be an entry on both your criminal record and your criminal driving record held by VicRoads.
From 1 December 2021, a spent conviction scheme began in Victoria. This means once a conviction becomes spent, it no longer forms part of your criminal record and in most cases, you don’t need to tell anyone about it.
However, it will likely still be on your driving and criminal records.
How do I deal with a drink driving charge?
Engage expert legal representation.
When you are charged with the offence, the police will set out the next steps. It’s important you contact a lawyer as soon as possible.
Then, if you’re required to go to court, you can either plead guilty or not guilty.
The plea you enter depends on if you agree that you have broken the law. This means you’ll tell the court that you’re guilty and the prosecutor will present the facts. The magistrate will find you guilty and give you a penalty.
If you decide to plead not guilty
If you decide to plead not guilty because either you believe you did not break the law, or you disagree with the alleged facts, your lawyer will need to present your defence in court.
There are established “not guilty arguments” that your lawyer can present, depending on the facts of your case. For example:
Honest and reasonable mistake
This is where the onus is on the prosecution to prove that your behaviour was not honest or reasonable. It is an available and legitimate defence and our experienced lawyers can advise you on the merits of this argument and if it could apply for your circumstances.
Blood alcohol level
The breath testing instrument used by police at the side of the road does not always give an accurate reading of a person’s blood alcohol level – so in some cases it cannot be the only proof for a drink driving offence.
The first test is there to give the police enough cause to arrest you and take you to another testing facility and perform a second test. The delay from the initial test to the secondary test could mean your blood alcohol level could change.
If police procedure has not been properly complied with
The law is clear and the police must comply with it. The breath certificate from the second test needed must be obtained within two hours from the first road-side test. There may be other variables in the police process which could be considered as part of your defence too.
Police cannot prove that the person was driving or attempting to put the vehicle in motion
This is for cases when the police did not physically stop and test someone at the roadside.
For example, the police may attend a scene and find a suspected driver – or the driver in question may be charged after an incident has occured. If the police are unable to prove beyond reasonable doubt that you were the driver, this is grounds for defence.
What can impact these penalties?
The penalties for drink-driving depend on:
The type of offence you committed
What happened as a result of your drink-driving will be taken into consideration e.g. if someone was hurt, this might mean more serious penalties are imposed.
Your age at the time
If you are under 26 years old, that may impact the length of the penalties involved.
The licence or permit you hold
Some licences require zero alcohol like taxi drivers and those on P-plate or with learner permits.
If it wasn’t your first offence
If you have been charged before, you may face a more severe penalty.
The higher the reading on your breath test, blood or urine sample, the more serious the penalty that might be imposed.
Refusing to breath test
Was this for a legitimate reason or was this to avoid a drink driving charge? The circumstances around this will need to be presented.
Failing to stop at a booze bus
Not complying with police instructions is a criminal offence.
Driving under the influence or other prohibited substances
If you had other substances in your system at the time of your offence this may incur additional penalties and punishments.