Caught Drink – Drug Driving



Drink or drug driving charges are the most commonly issued charges by Victoria Police, eclipsing both assault and property charges. Victoria Police conduct between 3.5 and 4 million random breath tests every year, and over 3000 roadside drug tests every month. This number is set to rise as more “booze buses” and police cars are equipped with drug testing capability.

Drink driving accounts for approximately 30% of motor vehicle fatalities. The statistics are even higher for drug driving. Approximately 37% of drivers killed in motor vehicle accidents are found to have traces of an illicit substance in their system. Approximately two thirds of drivers killed in 2012-13 tested positive to THC, the psychoactive component in cannabis.

Because of the dangers associated with drink and drug driving in Victoria, the Courts take a very tough stance on drink and drug drivers. If you have been charged with drink or drug driving, you will almost certainly lose your driver’s licence for a period to be determined by the Court. You may also be fined, and could have the conviction recorded on your criminal record.

In some rare circumstances however, with the help of an experienced criminal defence lawyer, you may be able to keep your licence and minimise a fine, as well as keep the charge off your criminal record. So it is imperative that you contact an expert criminal defence lawyer if you have been charged with drink or drug driving.

The Law

Drink Driving

A zero blood alcohol concentration (BAC) applies to probationary and learner drivers, as well as professional drivers such as bus, taxi and truck drivers. Zero BAC also applied to some drivers who have previously been found guilty of drink driving. For all others, the BAC limit is 0.05.

If you have been charged for the first time, you may be issued with an infringement notice. Depending on the level of BAC, you may be summoned to appear in Court. The law gets difficult when you are a repeat offender. If you are being charged for a subsequent drink driving offence, you may be liable to larger fines and even imprisonment. Larger fines and penalties also apply to repeat offenders who are on a zero BAC limit, even if they provide a breath analysis of less than 0.05 BAC, but greater than 0.00.

Questions arise as to what is a “subsequent offence”. Section 48(2) of the Road Safety Act provides that any offence taking place after a prior offence, however old, is a subsequent offence. However, section 50AA limits this to a period of 10 years. This can be confusing, and an expert criminal lawyer should be consulted to help you in this matter. You may be able to escape subsequent drink driving liability if you can show that section 50AA applies to you. A criminal defence lawyer can assist you with this.

Drug Driving

Section 49 of the Road Safety Act provides that it is an offence to drive a motor vehicle while under the influence of drugs or alcohol. The presence of any illicit substance will breach section 49, no matter whether you believe you were capable of being in proper control of the vehicle or not.

The police can request that you provide a saliva sample under section 55A. Under section 55D, it is an offence to refuse to provide a sample. If the sample is positive, you may be issued with an infringement notice and you will likely be summoned to appear in Court.

For a first offence, you may be fined up to 12 penalty units, lose your licence for 12 months, and potentially have a conviction recorded. For a second offence, you could face up to 120 penalty units, 12 months imprisonment and two years licence cancellation, as well as have a conviction recorded. For further repeat offences, the fine increases to 180 penalty units, 18 months imprisonment, and two years licence cancellation, with a conviction recorded.

Why You Need Legal Assistance

If you are found guilty of drink or drug driving there are several possible outcomes depending on the severity of the offence and whether it is your first or a subsequent offence. You may be heavily fined, lose your licence for an extended period of time, and have a conviction recorded on your criminal record.

Fines range from three penalty units (currently approximately $442) to over 180 penalty units (over $26,000). You may also face imprisonment for subsequent offences, with a sentence ranging between 30 days and 18 months.

For low level drink driving offences, you could face a loss of 10 demerit points and immediate licence suspension. For higher level drink driving offences, and drug driving offences, you may be disqualified from driving for between three months and two years.

This will have an enormous impact on your ability to keep your job if you are reliant on a motor vehicle to travel to and from work or between jobs. It will be especially difficult if your primary occupation is as a professional driver (bus, taxi or truck driver).

In limited cases, a criminal defence lawyer may be able to help you avoid a loss of licence. They can plead for a lower penalty, or raise a defence in your matter and minimise your fine. It is extremely difficult to avoid a loss of licence for serious drink and drug driving offences, and enlisting the help of a legal professional may be your only chance of keeping your licence, and by extension, your career.

As well as the above penalties, you may have the offence recorded on your criminal record. Employers can access these records, and you may find it extremely difficult to find a new job, and even to keep an existing job if you cannot perform the tasks required because of a loss of licence.

While employment discrimination is restricted by the International Labour Organisation Convention 111, it is not discriminatory for an employer to refuse you work if a criminal record renders you inherently incapable of performing certain tasks. An example of this is in jobs working with children (such as in schools, sports and medicine), where trust and reliance is an inherent aspect of the occupation.

Another penalty the court may impose for drink drivers is the application of an interlock device. This is fitted to your personal or professional vehicle and requires you to provide a 0.00 BAC sample of breath before and during your journey in order for the vehicle to operate. This is hugely inconvenient and can cause embarrassment if you travel with friends, family and work colleagues. A criminal defence lawyer can argue the necessity of an interlock device, meaning the Court may not order one to be installed if your lawyer can show that it would not be necessary.

You may also be required to re-sit a driver’s licence examination or a drink/drug driving awareness course. You will be expected to cover the cost, and you will not be granted a licence until you have satisfied all of the course requirements.


If you are facing a drink or drug driving charge, it is vital that you contact an experienced criminal defence lawyer immediately. The sooner a criminal lawyer can familiarise themselves with your matter, the better your representation will be.

Your criminal defence lawyer can raise defences in your matter, or plead for reduced penalties. This area of the law is very complex. A specialist criminal solicitor can help you understand your rights, the risks associated with defending your matter, and ultimately help you achieve the best possible outcome in your matter.

The majority of people need a licence for one reason or another. Some people rely on a driver’s licence to work, and for these people it is even more important that they receive expert legal representation. To avoid large fines, possible imprisonment, and the problems associated with a criminal record, contact a criminal defence lawyer immediately.