DRINK DRIVING Charge, Fines, Lawyers Melbourne
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Studies have shown that before 1987 over 110 motor vehicle drivers involved in fatal collisions exceeded the legal Blood Alcohol Concentration (BAC) of 0.05g/100ml. This number has fallen to an average of 40 drivers killed every year since 2008, and is largely credited to increased breath testing across the state and the deterrent effect of strict drink driving penalties applied by the Courts. Nonetheless, an average of 25% of people involved in motor vehicle fatalities each year exceed the legal BAC limit. Subsequently, the Victorian Judicial system takes a hard line on drink driving offences.
A strict zero blood alcohol concentration (BAC) limit applies to probationary and learner drivers, professional drivers (bus, taxi and truck drivers for example), and drivers who have previously committed drink driving offences. For all other drivers, the legal BAC limit is 0.05. The 0.05 BAC limit also applies to drivers accompanying a learner driver.
Drink driving laws apply to public roads and private property. It is also an offence to refuse to provide a breath or blood test when requested, or fail to cooperate when a breath or blood test is being conducted.
OFFENCES AND PENALTIES
If this is your first drink driving offence, the police may issue you with an infringement notice. However, the police have the authority to issue you with an infringement notice or summon you to court. If this is a subsequent offence, or your BAC exceeds 0.15, the police will lay charges and the matter will be taken to court.
What is considered a “first offence” is somewhat confusing. Section 48(2) of the Road Safety Act tells us that any prior offence, however old, will make the new offence a subsequent matter relevant to sentencing considerations per section 49 of the Road Safety Act. However, when considering what is the minimum mandatory time off the road in relation to a drink driving offence that must be imposed by a Magistrate, section 50AA tells us that if the offence date of the new offence is 10 years after the finding of guilt in relation to the first offence then the new offence will not be a subsequent offence in respect of section 50 of the Road Safety Act. Please be aware this only helps determine the minimum time that must be imposed. You can always get more, and often do.
There are also circumstances where, on a reading of less than .05 where you should have had a zero BAC, and you have been brought to Court on a second offence, you may be able to avoid licence loss but the matter is difficult and the discretion is rarely exercised.
It is a confusing area of the law. If you would like further assistance in understanding your legal position, you should call our office to speak to one of our experienced drink driving lawyers today.
If the authorities choose to lay charges and take you to court, or if you choose to go to court because you do not agree with the infringement notice and the court finds you guilty, more serious penalties may apply.
HOW THE PENALTIES WORK
Fines issued by the court are based on penalty units. As of 1 July 2014, one penalty unit is $147.61, however the value of a penalty unit increases every financial year. Fines, licence cancellation and imprisonment are dependent on the degree to which you have exceeded the legal BAC limit. See the below table as an indication of penalties for drink driving infringement notices.
|BAC||Licence type||Fine||Licence action / points|
|Less than .05||Zero BAC licence (e.g. professional drivers, P licence, L permit)||2.5 penalty units||10 demerit points|
|.05 to less than .07||Zero BAC licence (e.g. professional drivers, P licence, L permit) and full licence (under 26 years)||3 penalty units||Cancellation of licence/permit and disqualification for 6 months|
|.05 to less than .07||Full licence (26 years or older)||3 penalty units||10 demerit points|
|.07 to less than .15||All drivers||3 to 4.25 penalty units||Cancellation of licence/permit and disqualification for 6-14 months depending on BAC|
|.15 or above;or for a subsequent offence||All drivers||Traffic infringement notices are not issued for BAC of .15 or above, or for subsequent offences. Charges are laid for the offence and the matter is dealt with at court.||Attend Magistrates’ Court|
ON THE SPOT SUSPENSIONS
The police may suspend your licence immediately after a breath analysis if the BAC is 0.07 or more for learner drivers, or 0.10 or more for full licence drivers, as well as any illegal reading for repeat offenders. This is what is known as a “section 51 notice”. It is called a section 51 notice because it relates to section 51 of the Road Safety Act. Per section 51(10) you are able to appeal the imposition of any section 51 notice immediately suspending your driver’s licence. To appeal a section 51 notice it is critical that you seek specialist legal advice. You must give 14 days notice to the commissioner of police prior to listing a section 51 appeal, further to that on appearing at Court you must establish exceptional circumstances to the satisfaction of the Magistrate. What are exceptional circumstances vary from a case-to-case basis. To consider whether you might be able to satisfy the test you should call our office to speak to one of our experienced traffic lawyers.
Any time served under a section 51 notice will be deducted from any time later imposed by the Magistrate in relation to the offence.
Full licence holders have 12 demerit points with the restoration of lost demerit points occurring after three years. Learner and probationary drivers have 5 demerit points, loss of which will be restored after one year, but also have the same 12 demerit point threshold as fully licenced drivers. For drink driving, if your driver’s licence or learner permit has not been cancelled, will result in the loss of 10 demerit points. This results in an automatic four month licence suspension unless you choose to accept the “double or nothing” option. Contact one of our experienced lawyers to evaluate your options today.
If you have been convicted of a serious drink driving offence, the Court may order that an alcohol interlock be fitted to your vehicle. This device requires you to supply a zero BAC breath test before the vehicle will start, as well as during the course of the trip.
SUSPENSION OR CANCELLATION?
When your licence is suspended, you are disqualified from driving for a period specified by the Court. Once this suspension period has elapsed, your licence or learner permit is restored.
When your licence is cancelled, you are also disqualified from driving for a period specified by the Court. However, you must also attend VicRoads and reapply for a licence or learner permit. This is not automatic, and you may need to attend a drink driving education course, assessments for an alcohol problem, and you may even need to attend the Magistrates’ Court to plead for the restoration of your licence or permit.
You may choose to have your case heard in court to contest an infringement notice or charge. However, if the court finds you guilty, you may be fined and your licence may be cancelled. Court attendance is compulsory for offences involving a BAC of 0.15 or more. If found guilty, your licence or learner permit may be cancelled for up to 2 years, and a heavy fine may apply. Most serious and repeat offenders face the possibility of imprisonment, with the maximum penalty for repeat offenders being 18 months in prison.
Criminal records can apply to drink driving offenders, tarnishing reputations and making future employment difficult. Courts also have the power to order the completion of driver education programs, make your re-sit licence exams, impose licence conditions for zero tolerance, impose interlock devices and complete alcohol addiction assessments. These may be imposed in addition to or instead of other penalties. There are defences to drink driving, and it is important that you seek expert legal advice to assist you in your matter.
If you have to attend Court in relation to obtaining your driver’s licence, be very careful. The course instructor will often tell you that you do not need a lawyer present when you attend Court. However, years of criminal law experience has shown that unrepresented clients are often out of their depth in Court and can be told to return to the Court in 3 months following their evidence. If you would like to learn more about attending court to obtain your licence back, please click here for information on licence restoration hearings.