Being charged with drink or drug driving can have serious consequences, including fines, license suspension, or even imprisonment. While the penalties are more often than not at the lower end, it is the lengthy licence suspensions or cancellations that are mandatory on findings of guilt that cause the greatest concern.
If you’re facing a drink or drug driving charge, it’s essential to act quickly and seek experienced legal representation so that you know your rights and the consequences of your choices prior to attending court.
Contact Marcellus Law today for expert advice on drink or drug driving offences in Melbourne. As one of the leading criminal lawyers in Melbourne we can advise you on how best to protect your rights. Our office has successfully defended matters where the evidence has been flawed and we pride ourselves on identifying the nuanced issues that arise during the complex procedures around testing and the complicated criteria for the numerous offences. At the very least, it is worth speaking to our office no matter what the offence so that you are aware about all possible options open to you.
Drink & drug driving offences are derived wholly from the Road Safety Act 1986, a Victorian legislation, which governs all road laws in this state. Specifically, Section 49 of the Act defines all offences relating to alcohol and drugs. They are classified as traffic offences and will often involve a court summons for the matter to be determined at the Magistrates Court. While the punitive, or punishment, element of these offences are rarely severe and usually involve fines or therapeutic orders, should there be an underlying substance abuse issue, the main thing for offenders to consider is that if proven these offences will always involve a mandatory minimum, and often lengthy, licence disqualification. The nuances of these offences and the disqualification periods that apply are detailed below.
Section 49(b) of the Road Safety Act states that a person is guilty of an offence if he or she drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of alcohol (PCA) or more than the PCA is present in his or her blood or breath.
Section 49(f) of the Road Safety Act states that a person is guilty of an offence if within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis which indicates that the PCA or more than the PCA is in his or her breath and the concentration of alcohol in the analysis was not due solely to the consumption of alcohol after driving or being in charge of a motor vehicle.
Section 49(g) is similar to 49(f) but applies to samples of blood rather than breath and has the same requirements.
When charged with a drink drive offence, and depending on the circumstances of the offending, an accused’s charge sheet may carry one or a combination of the above charges. Each charge comes with its unique requirements but there is some overlap in the criteria and on a plea or finding of guilt the Prosecution will only pursue one of the charges where the criteria is fully met through the evidence in the brief.
The blood alcohol limit in Victoria is 0.05. This means that a person in Victoria may operate a motor vehicle having consumed alcohol but must be careful to not be over this limit at the time they operate the vehicle. The law requires operators of a motor vehicle to regulate and control their own consumption and ensure they remain within the limit. An excess of the limit becomes a prescribed content and prohibits users from operating a motor vehicle. A finding of guilt either through a traffic infringement notice or in open court will result in a mandatory licence disqualification. The minimum mandatory periods are detailed in Schedule 1 of the Road Safety Act and are usually commensurate to the blood alcohol level determined through analysis. The mandatory period will double for any second or subsequent offence of exceeding PCA. A second or subsequent offence is one that occurs within 10 years after the commission of the last relevant offence.
The blood alcohol limit can be determined through a sample of breath or blood taken by Police. A sample of breath is usually requested on interception and Police have the power to request a breath test randomly and at any time. If the initial breath test reveals a level of blood alcohol that is prescribed, or above the limit, they will then ask you to accompany them either to a police vehicle on site or back to the police station for further analysis. You may refuse, however the consequences of a refusal can be much worse and the specific offence related to refusal is described below. Blood samples are usually taken after motor vehicle accidents and requests by Police from a hospital after the accused is required to undergo a mandatory blood test.
Due to the wide powers of Police to request breath tests, defences are uncommon. A valid defence will usually involve evidential issues relating to the manner or procedure of the test or the handling of the evidence that alleges the blood alcohol content.
If you are charged with drink or drug driving offences, it’s important to understand your legal options and act quickly. For expert guidance, contact Marcellus Law to ensure the best possible outcome for your case.
Section 49(bb) of the Road Safety Act states: A person is guilty of an offence if he or she drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of drugs (PCD) or more than the PCD is present in his or her blood or oral fluid.
Section 49(h) of the Road Safety Act states: A person is guilty of an offence if he or she within 3 hours after driving or being in charge of a motor vehicle provides a sample of oral fluid or blood which indicates at the time of analysis that a PCD was present in that sample in any concentration and was not due solely to the consumption or use of that drug after driving or being in charge of a motor vehicle.
These provision almost mirror those with respect to alcohol but with one important difference – there is no acceptable limit for use of illicit drugs while driving. Any indication of illicit drugs in an accused’s system after analysis will, if proven, result in a finding of guilt and a mandatory licence disqualification. The mandatory disqualification period is 6 months for a first offence of exceeding PCD and 12 months for any second or subsequent offence. Again, a subsequent offence is one that occurs within 10 years after the commission of the last relevant offence.
Police powers are just as wide as with the provision with respect to alcohol above making a defence rare. A valid defence will again usually involve evidential issues relating to the manner or procedure of the test or the handling of the evidence that alleges the presence of illicit drugs in the accused’s system.
Offenders are often intercepted and tested while under the influence of both alcohol and drugs at the same time. A specific offence is provided under the Road Safety Act for such occurrences and as can be imagined the consequences are much higher due to the often dangerous combination of driving while under the influence and alcohol and certain drugs.
Section 49(bc) of the Road Safety Act states: A person is guilty of an offence if he or she drives a motor vehicle or is in charge of a motor vehicle while both the PCA or more than the PCA is present in his or her blood or breath, and the PCD or more than the PCD is present in his or her blood or oral fluid.
The mandatory minimum disqualification periods are detailed in Schedule 1AB of the Road Safety Act and are usually commensurate to the level of alcohol in a person’s breath or blood taken into account that an illicit drug was also found in the blood or oral fluid. Subsequent offences also carry at least double the disqualification period. An accused if found guilty can expect an exceptionally lengthy period of disqualification for these offences.
Section 49(a) of the Road Safety Act states: A person is guilty of an offence if he or she drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle.
A similar offence relating to drug driving falls under Section 49(ba) of the Road Safety Act which states:
A person is guilty of an offence if he or she drives a motor vehicle or is in charge of a motor vehicle while impaired by a drug.
This provision revolves around the issue of impairment. Beyond just an excess of PCA, Police must be able to prove through the circumstances of the offending that the accused was so intoxicated as to be unable to exercise proper control over their motor vehicle. For the drug offence, Police must prove some impairment due to the drug use. The question around improper control or impairment is usually subject to interpretation through the context of the offending and is not as easy for Police to prove as the above offences. This can usually be determined by observation of the accused’s driving behaviour, for example where the accused is observed swerving between lanes or mounts a curb, or is involved in a collision after notably losing control of the vehicle. It is often compelling where the alleged improper control or impairment results in an event and coupled with an exceptionally high blood alcohol level or content of illicit drugs which can be revealed through a forensic report.
Due to the added aggravating feature of the impairment, the mandatory minimum disqualification period for this offence is much higher. The first offence of this kind will attract a 2-year mandatory disqualification period. The second or subsequent relevant offence will attract a 4-year period. It is important to note that a relevant offence for the purposes of this section includes not only a similar charge but also any other charge of drink or drug driving within the 10 years after the commission of this offence.
As mentioned above, an operator of a motor vehicle when intercepted has the right to refuse either a breath or oral fluid test, or to accompany police for a second testing and analysis. Although this may indicate a refusal that may be proven or justified after the event, this is actually not the case and refusals are usually penalised and carry serious consequences.
Section 49(c) of the Road Safety Act states: A person is guilty of an offence if he or she refuses to undergo a preliminary breath test when required to do so.
Section 49(ca) of the Road Safety Act states:
A person is guilty of an offence if he or she refuses to undergo an assessment of drug when required to do so.
Similar to refusing a test is refusing to accompany police either to a local testing site or back to the police station for the second mandatory test for alcohol and drug analysis. Sections 55 and 55A of the Road Safety Act address these refusals and the basis on which they may be required, the most common of which follows a preliminary positive test. Police require this second test to obtain an accurate analysis as the initial testing does not meet the evidential requirement. This means in practical terms that the refusal of the second test poses the same issues for police as the refusal of the initial test, and therefore a refusal on this basis will carry the same consequences to the accused.
Similar to the above offences, the punitive, or punishment, element is not the main concern, but the licence cancellation. A refusal of the preliminary test or to accompany police for either alcohol or drug testing carries a mandatory minimum licence disqualification of 2 years for a first offence and 4 years for a subsequent offence if found guilty. A subsequent offence is any drink or drug driving related offence in the 10 years preceding the alleged offence date.
It is rare for an accused to have a valid defence at the scene and defences often arise after a thorough legal review of the evidence. Police are required to give a clear warning of the consequences of a refusal, often reading verbatim from a notepad, and ensure that the accused understands the issue. It is important that the accused makes a decision fully understanding their rights and potential consequences. Police are also required to give the accused an opportunity to consider the test and contact a lawyer if required and any pressure that detracts from this process may raise questions of compliance.
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