Drink and Drug Driving



Both drink driving and drug driving are serious offences and the laws are enforced very strictly by the police and law courts in Victoria. A combination of drink and drug driving dramatically increases the chance of the driver causing an accident, and puts other road users at risk of death or serious injury.

Victoria Police has increased the capability of its drink and drug driver testing. Nearly 4 million drivers are breathalysed every year, and over 3000 road users are drug tested every month. The number of drug tests is increasing as more police cars become equipped to perform roadside drug testing, especially in Melbourne’s eastern suburbs.

As a result, the chance of being caught and charged with drink or drug driving if you have exceeded the legal limits is significantly higher today than in previous years. The penalties for these offences are very serious, and you may face large fines, loss of licence, a criminal conviction, and even prison time if you are found guilty.

If you have been charged with drink or drug driving, you should contact an experienced criminal lawyer immediately. An expert traffic lawyer may be able to help you keep your licence, avoid a criminal conviction, and keep you out of prison. It is important that you contact a specialised criminal lawyer as soon as possible.

The Law

Drink Driving

For learner, probationary and professional drivers the legal blood alcohol concentration (BAC) is 0.00. This limit also applies to previous drink driving offenders. The BAC for other road users is 0.05.

If you exceed these limits you may be issued with an infringement notice and be summoned to appear in Court at a later date. If your BAC is particularly high, your licence may be immediately suspended and you will not be able to drive until after the result of your Court matter.

If you are found guilty in Court, you may be disqualified from driving for up to two years, depending on the severity of the offence. You may also face large fines, and a conviction may be recorded against you, making it more difficult for you to find or keep employment in the future.

The Court may also decide to have an interlock device installed in your vehicle after your licence has been restored, meaning you must provide a 0.00 BAC sample before and during every journey. In serious cases, if you have repeatedly broken the law by drink driving, you could face extended periods of imprisonment.

Drug Driving

Under section 49 of the Road Safety Act, it is an offence to drive a motor vehicle while under the influence of drugs or alcohol. Specifically, it is an offence under section 49(1)(ba) to drive a motor vehicle while impaired by a drug.

If you are found to have an illicit substance in your system, no matter how strong or weak the concentration may be, it will be deemed to impair your ability to drive.

However, section 49(3B) provides a defence to a charge under section 49(1)(ba). A charge cannot be upheld if the substance detected was that of a legal non-prescription or prescription drug, used in the correct manner and dosage prescribed by a medical professional, and the accused could not reasonably have known that it would impair their driving.

This defence only applies if the drug or drugs detected were legal non-prescription or prescription drugs, and will not apply if there is any detectable amount of illegal drugs also present.

The penalty for drug driving, like drink driving, varies depending on the amount of illicit substance detected, and whether it is a first or subsequent charge. For a first offence, the penalty may be a fine, loss of licence and potential conviction. For subsequent offences, you may be fined much more heavily, have your licence disqualified for two years, and face 18 months in prison.

Case Studies

The Road Safety Act 1986 (Vic) makes it an offence to drive while under the influence of alcohol or any drug to the extent that the accused cannot have proper control of their vehicle.

This is a broad provision, and the law has been amended to include provisions which make it illegal to:

  • drive while intoxicated to a certain amount;
  • drive while impaired by a legal drug to a certain extent; and
  • refuse a breath or drug test.

The law is interpreted by the Courts, and various precedents help us understand the Road Safety Act better, and give greater guidance in understanding the criminal law as it relates to drink and drug driving.

The following case examples outline contentious issues in the criminal law, and the current legal interpretation applied to them.

Dunsmore v Weber (1988) 8 MVR 133

The Facts

The accused was found to have marginally exceeded the legal drinking limit, reading 0.06 BAC. He was also found, however, to have taken cannabis the day before driving. The Supreme Court of South Australia had to determine whether a person could be charged with both drink driving and drug driving, or whether the prosecution could only follow one charge.

Court Decision

The Court determined that it was reasonable to charge the driver with both drink driving and drug driving if both substances were present and could impair the driver’s control of the vehicle. This meant that if the prosecution’s case failed in relation to the drink driving charge, it could still succeed on the drug driving charge.

A person found to be impaired by both drink and drugs would be more likely to be found guilty as the prosecution could pursue a charge of drink driving, drug driving, or both.

In certain circumstances, especially where there is more than one charge against an accused person, a guilty plea may be more desirable than contesting some or all of the charges. This is particularly applicable to a scenario such as that in Dunsmore v Weber, where the drink driving charge may be admitted in exchange for the prosecution to withdraw the drug driving charge. This may result in a reduced fine or licence suspension (see DPP v Foster; DPP v Bajram [1999] 2 VR 643).

Law update: Where both drugs and alcohol are detected, police now have the power to charge both a prescribed content charge in relation to drugs, under (49)(1)(bb) or (h) (alternatives), an exceed prescribed content charge in relation to alcohol under, (49)(1)(b) or (f) (alternatives) and a drive whilst prescribed content and alcohol charge, under 49(1)(bc) covering both. In this situation it would sometimes be prudent when facing all three charges to consider pleading guilty to both the 49(1)(h) and 49(1)(f) on the basis the 49(1)(bc) is withdrawn. This is because the mandatory minimum times in relation to licence disqualification are less individually than the 49(1)(bc) charge. All licence loss imposed by a Magistrate is concurrent. To the lay person this is unlikely to make sense, if in the unlikely situation you are facing this situation you should call our office to get advice.

Reddy v Ross [1973] VR 462

The Facts

The accused was pulled over by police and asked to undergo a roadside breath test. The accused refused to give a sample of breath and was arrested. While in the police car, the accused changed his mind and agreed to give a breath test. He was nevertheless escorted to the police station and charged for refusing to give a breath analysis.

Court Decision

The Supreme Court of Victoria held that a defendant’s refusal to give a sample of his breath was a breach of the criminal law, and his subsequent change of mind did not alter the initial breach.

The Court held that in a situation where an accused person initially refuses to give a sample of breath but later agrees, the prosecution may choose whether they will continue to charge the accused for breaching section 49(1)(c) of the Road Safety Act.

This case is precedent for the principle that any refusal to provide a sample of breath can be charged and prosecuted (see also DPP v Vaa [2004] VSC 444). There are narrow defences to a refusal to provide a sample of breath which an expert criminal defence solicitor may be able to raise, however this is very rare.

If you have been charged with drink driving, or charged with refusing to give a sample of breath, you should contact an experienced criminal lawyer as soon as possible.

Similar provisions exist for refusing to provide a sample of oral fluid if a police officer requests that you do so on suspicion that you may be impaired or under the influence of drugs.

Certain defences are also available to a charge of refusing to provide a sample of oral fluid. You must be able to satisfy a court that there is ‘a reason of a substantial character’ (see section 49(1C) and section 55E(12) of the Road Safety Act) for refusing to give a sample.

What constitutes a defence of ‘substantial character’ is determined case-by-case based on individual facts (see DPP v Ellison (1995) 21 MVR 444). Once again, you should contact an experienced criminal lawyer immediately if you have been charged with drug driving or refusing to give a sample of oral fluid.

DPP v Foster; DPP v Bajram [1999] 2 VR 643

The Facts

In this case, which was based on an alcohol reading rather than a drug assessment – but which can be equally reasoned – it was posited that a police officer needed to have some reasonable suspicion that the defendant was impaired by drugs or alcohol pursuant to section 55A of the Road Safety Act. Without such a suspicion, the drug assessment would not be valid.

Court Decision

The Victorian Supreme Court held that for the purposes of section 55A a driver is not to be taken as impaired unless some action or appearance causes an officer to have reasonable suspicion that the driver may be impaired or influenced by drugs or alcohol (see generally George v Rockett (1990) 170 CLR 104).

Consideration may be given to observations, overt acts, admissions, evidence of bad driving, locating drugs in the vehicle, slurred speech, lack of balance, and a breath test.

The case is precedent for the principle that police officers require some evidence (albeit varying from officer to officer based on individual interpretation) that a person is impaired or under the influence of drugs or alcohol before undertaking a drug assessment.

While this may be relevant to other factors in a court matter, it would not constitute a defence if a subsequent drug assessment turned out positive, despite the accused exhibiting no visible signs of drug or alcohol impairment.

There are also other factors relevant to drug testing, such as following proper procedures in relation to:

  • testing within three hours of driving;
  • video-recording during a drug assessment; and
  • a request to accompany a police officer to a police station or other place.

Contact a Criminal Lawyer Today

Like the defence under section 49(3B), there may be other defences an experienced criminal lawyer could raise in your matter. There are strict legal and procedural processes that must be followed by police, and your rights may be affected if they have not been followed correctly. Further, you may have other rights under the criminal law which could help you retain your licence and avoid imprisonment.

The law regarding drink and drug driving is highly detailed and complex. If you are improperly represented in Court you could be facing hefty fines, large periods of time off the road and even imprisonment. You should contact an experienced criminal lawyer immediately if you have been charged with drink or drug driving.