Common driving offences

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Driving at more than 25km/h over the speed limit incurs a minimum 6 month loss of licence. Penalties for driving under the influence (DUI) are heavier than for driving with excessive blood alcohol content (BAC). Refusing breath or blood tests can lead to 2-year licence disqualification. Failure to have zero BAC does not entail automatic licence suspension. Licence restoration after a drink driving offence will entail tests, courses, reports and a court appearance. Alcohol interlock devices are now more widely used. There are 3 drug driving offences and conviction involves fines and disqualification. Heavy fines and possibly imprisonment can follow driving while disqualified. Dangerous driving incurs automatic licence disqualification.

Speeding

Schedule 5 of the RSA outlines the penalties for speeding. Courts must suspend for at least one month the driver licence or permit of a driver found guilty of speeding 25 km/h or more, but less than 35 km/h, over the speed limit (s 28(1)(a), sch 5 RSA).

Drivers found guilty of speeding 35 km/h or more, but less than 45 km/h, over the speed limit must have their licence suspended for a minimum of six months.

For speeding 45 km/h over the speed limit, a driver must have their licence suspended for a minimum of 12 months.

Therefore, the effect of schedule 5 is that once a court finds a driver guilty of driving 25 km/h or more over the speed limit, it must suspend the driver licence or permit for the minimum period mentioned in the “Demerit points incurred for common offences” table.

It is possible for full licence holders with recent good driving records charged with minor speeding offences to apply to the Penalty Review office for a warning to replace their fine for an infringement speeding offence (seeInfringement Notice withdrawal”).

Drink-driving offences

Part 5 of the RSA contains seven types of drink-driving offences:

1 driving or being in charge of a motor vehicle under the influence (s 49(1)(a));

2 driving or being in charge of a motor vehicle while the blood-alcohol content (BAC) exceeds the prescribed limit (s 49(1)(b));

3 “fail the test” offences (s 49(1)(f), (g));

4 refusing a breath test (s 49(1)(c), (d), (e)) or failing to undergo a blood sample in hospital after a motor vehicle accident (s 56);

5 failure to have zero blood-alcohol (s 52);

6 accompanying driver offence (s 48(1AA)); and

7 the new offence of combined drink-driving and drug-driving (s 49(1)(b), (c).

1  Driving under the influence

It is an offence to drive a motor vehicle while under the influence of intoxicating liquor or drugs to such an extent as to be incapable of having proper control of the motor vehicle (s 49(1)(a)).

This offence is known as driving under the influence (DUI) and is usually brought against drivers obviously affected by alcohol. Police often bring a DUI charge against drivers who have a high blood-alcohol level (e.g. over 0.15%) in addition to laying a charge of exceeding the prescribed limit of BAC. The maximum penalty for a DUI charge is more severe than for other drink-driving offences, both in terms of licence disqualification and in the maximum fine applicable. This should be borne in mind in cases where a driver is charged with both DUI and exceeding the prescribed BAC limit.

2  Driving while BAC exceeds prescribed limit

This offence is where a person is driving or being in charge of a motor vehicle while their BAC exceeds the prescribed limit (s 49(1)(b)). The prescribed BAC limit is zero for probationary licence holder, learner permit holders and unlicensed drivers (s 52). The prescribed BAC limit for full licence holders is under 0.05. A drink-driving offence is committed by any driver whose BAC is 0.05 or over (replacing the old offence of driver’s BAC exceeding 0.05). The BAC is established by either blood tests or breath tests.

3  “Fail the test” offences

It is an offence for a driver – within three hours of driving or being in charge of a motor vehicle – to provide a breath sample (s 49(1)(f)) or a blood sample (s 49(1)(g)) that exceeds the prescribed BAC. It is possible for police to take a driver’s breathalyser reading or blood-alcohol concentration more than three hours after driving. In this circumstance, the driver should be charged under section 49(1)(b).

4  Refusing breath or blood tests

There are four separate offences that involve refusal to undergo a breath test. These are:

1 refusal to undergo a preliminary breath test as required (s 49(1)(c));

2 refusal or failure to stop a motor vehicle and remain stopped as required at a preliminary breath test station (s 48(1)(d));

3 refusal to undergo a breathalyser test (s 49(1)(e)); and

4 failure to undergo a blood sample upon request in hospital after a motor vehicle accident (s 56).

If a person is convicted for any of the above four offences, they must have their licence disqualified for a minimum of two years. They may also have to pay fines and, in the case of a subsequent offence, be imprisoned.

5  Failure to have zero BAC

Certain drivers must have zero BAC at all times while driving (s 52). These drivers are:

probationary licence holders;

unlicensed drivers;

drivers of large vehicles;

learner permit holders;

drivers subject to alcohol interlock conditions (only licenced to drive cars fitted with a device that only allows the car to start when a zero BAC sample is provided);

holders of a full licence to drive a taxi;

commercial driving instructors;

full licence holders for the first three years after court-ordered licence restoration after drink-driving convictions; and

motorcyclists for the first 12 months of holding this licence, irrespective of whatever other licences are held.

Exceptions to this are learners who hold full licences for other vehicles, unlicensed drivers who have simply failed to renew their licences, and drivers who hold full interstate licences.

If a driver is convicted for failing to have zero BAC, this does not automatically mean their licence is cancelled (courts have discretion to decide this (s 50(1)(a))). Where a court does not cancel a licence in this situation, the driver will be required to attend a VicRoads driver education course. The driver’s failure to attend the course will result in the cancellation of their licence (s 50A(2), (3)).

6  Accompanying driver offence

Licence holders who accompany learner drivers as non-professional driving instructors must have a BAC of less than 0.05. They must also adhere to their other obligations as licence holders. However, accompanying driver offences attract a fine and do not require automatic licence disqualification (see definition of accompanying driver offence (s 3(1)); see also s 48(2)).

7  Combined drink-driving and drug-driving offence

This is a new offence and applies to drivers who have a higher BAC than permitted for their licence status, and who also have illicit drugs in their blood or fluid (when tested) (s 49(1)(b), (c).

Penalties involve fines and/or imprisonment as for other drink-driving offences. There is also a minimum licence disqualification for 12 months (first offence, BAC 0.07 or above), which then increases to a minimum of 30 months disqualification and 60 months disqualification (second or subsequent offence) depending on the BAC reading (see new sch 1AB Road Safety Act).

This new offence also attracts immediate licence suspension (s 11 2014 Act).

Penalties and other consequences for drink-driving and drug-driving offences

Drivers who commit drink-driving and drug-driving offences may face the following penalties:

1 Minimum licence disqualification and fines and/or imprisonment.

2 Immediate licence suspension.

3 Seizure of their motor vehicle. This now applies to first offenders with a BAC of 0.1 or over, as well as more serious drink-driving offences.

4 Alcohol interlock device installation on licence restoration. This now applies to all drivers including first offenders with a BAC of between .07 and .15.

A driver’s BAC

The penalties for drink-driving offences involving BAC readings vary according to the driver’s BAC. The period of time that a driver’s licence is disqualified depends on their BAC reading. The period of disqualification is doubled for a subsequent offence (sch 1 RSA).

A drink-driver who has a BAC reading of 0.07 or above must have their licence cancelled – irrespective of whether they were issued with a traffic infringement notice (s 89(C)(1)) or a summons to appear in court (s 50(1AB)(b)).

A drink-driver who has a BAC reading of 0.05 or 0.06 may retain their licence, subject to incurring 10 demerit points (s 25(2A); seeVicRoads’ licence and permit powers”). However, this does not apply to drivers under the age of 26 years (s 50(1AC)), who must lose their licence for this offence.

A driver’s prior drink-driving offences

The penalties for drink-driving offences involving BAC readings also vary according to the driver’s prior drink-driving offences. For example, if a person is convicted of the offence of DUI, or of refusing a breath or blood test, they will have their licence disqualified for two years if it’s their first offence, or for four years for subsequent offences.

A “subsequent offence” is a prior conviction (including an interstate conviction) for a drink-driving offence (s 48(2)). The RSA (ss 48(2), 49(2), (3)) distinguishes between a “second offence” and a “subsequent offence” (i.e. a third or more drink-driving offence) for the purpose of penalties for drink-driving offences.

Penalties for second blood-alcohol offences usually involve:

fines or imprisonment; and

licence/permit disqualification.

Convictions that are more than 10 years old do not automatically make the current offence a second or subsequent offence, although magistrates tend to take into account any prior drink-driving convictions when fixing the length of licence disqualification for drink-driving offences (s 50AA).

Defences to sections 49(1)(b) and 49(1)(f) offences

It is possible to challenge BAC readings successfully when a charge is laid under section 49(1)(b) of the RSA. These defences are usually based on expert evidence. It is also possible for drink-driving charges to be challenged on grounds that the police have failed to comply with the drink-driving legislation. Successful challenges to BAC readings are becoming rarer. You should seek legal advice about this matter.

Immediate licence suspension

Immediate licence suspension occurs for certain drink-drivers:

full licence holders whose BAC is 0.10 or more;

probationary licence holders or permit holders whose BAC is 0.07 or more (s 51(1)(a));

repeat drink-drivers who had their licence suspended less than 10 years before;

drivers charged with drug impairment offences (seeDrug-driving offences”);

drivers whose BAC is over the prescribed limit, and who also have illicit drugs present in their system (s 11 2014 Act).

The immediate licence suspension for the drink-drivers mentioned above takes effect when the person is charged with the drink-driving offence. However, it may also be affected by giving the driver a notice suspending the licence, without the need to charge the driver with the offence.

An immediate licence suspension notice can be cancelled if the driver can show exceptional circumstances. This can be done by making a submission to the informant’s senior sergeant (s 51(9A)). If you do not do this, or it is unsuccessful, you can make an appeal to the Magistrates’ Court (s 51(10)).

Licence restoration and licence eligibility orders

Most drivers convicted of drink-driving offences are required to do certain things before their licence is restored. These requirements are becoming more onerous each year. The restored licence may also be subject to certain conditions.

Licence restoration depends on:

the age of the driver;

the nature of the drink-driving offence;

the level of BAC in the drink-driving offence;

whether it was a first, second or subsequent offence; and

the type of licence held.

The requirements for licence restoration (what you need to do to get your licence back) may include the following:

having a BAC test 12 months before a licence restoration application;

submitting an application to the Magistrates’ Court for licence restoration;

obtaining a licence eligibility report;

attending a drink-driving course;

attending a police interview;

attending court to give evidence of current drinking habits and other relevant matters;

having licence eligibility orders (replacing licence restoration orders) – these orders require drivers to obtain licence eligibility reports before their licence is restored.

The conditions of licence restoration (what you need to do to keep your licence after you get it back) may include the following:

having zero BAC while driving for three years; and

having an alcohol interlock device fitted to motor vehicles.

Drivers who lose their licence for drink-driving offences should immediately look into what requirements they must fulfil before having their licence restored.

Under section 31KA of the 2014 Act, first offence drink-drivers with a BAC under .01 can apply to VicRoads for a licence restoration without attending the Magistrates’ Court.

Alcohol interlock devices

Prior to 2014, the requirement for drivers to fix alcohol interlock devices (AID) to their car was only imposed on drivers who had their licence restored after being convicted for having a high BAC reading, or who had prior drink-driving convictions.

However, as a result of the 2014 Act, AID requirements have now been extended to most drink-drivers, including first offenders with BAC of between 0.07 and 0.15.

For more details about having a licence restored, contact the local Magistrates’ Court (go to www.magistratescourt.vic.gov.au for court locations and contacts, or see An introduction to the courts) or obtain a VicRoads booklet on licence restoration from a VicRoads office, or from their website (www.vicroads.vic.gov.au).

Drug-driving offences

Drug testing

Drivers may be required to undergo a drug assessment test (s 55A(1) RSA). This procedure must be videotaped (unless exceptional circumstances exist) (s 55A(6)) and a copy of the recording must be given to the driver (s 55A(7)). If, after the drug assessment test, police believe that the driver is drug impaired (i.e. the driver’s behaviour during the test is consistent with drug-related behaviour, and this behaviour would result in the driver being unable to drive properly (s 49(3A)), the driver may be required to provide a urine or blood sample to an approved health professional (s 55B(1)).

Drug-impairment offences

There are three drug-impairment offences.

1 Driving while drug impaired (s 49(1)(ba))

Drivers can defend this charge by establishing that the drug in their system was a prescription drug or a permissible non-prescribed drug (s 49(3B)). A charge under section 49(1A) (see1 Driving under the influence”) may be reduced to a charge of driving while drug impaired (s 49(8)), as the latter has a lesser licence disqualification penalty.

2 Refusing to undergo a drug-impairment assessment under section 55A (s 49(1)(ca))

3 Refusing to comply with a requirement under section 55B to provide a blood or urine sample after a drug-impairment assessment (s 49(1)(ea))

4 Other drug-driving offence

Penalties

A person who is convicted of driving while drug-impaired must have their licence disqualified for a minimum of 12 months (for a first offence) or two years (for second or subsequent offences) (s 50(1C)). They may also have to pay a fine, or serve a jail term, particularly for subsequent offences.

A driver who is convicted of offences 2 and 3 above (under s 49(1)(ca) and 49(1)(ea) respectively) can have their licence disqualified for two years for the first offence and four years for second and subsequent offences (s 50(1D)).

The provisions for immediate licence suspension for drug-impairment offences (s 51(1A)) are similar to the provisions for immediate licence suspension for drink-driving offences (seeImmediate licence suspension”). Also, the requirements for licence restoration for drink-driving offences (seeLicence restoration and licence eligibility orders”) apply to the new drug offences (see s 50(4A)(b) as amended).

Other drug-driving offences

These offences are similar to the drink-driving offences in the RSA, as set out below.

1 Driving while a prescribed illicit drug is present in the driver’s fluid or blood (s 49(1)(bb))

This is similar to section 49(1)(b) of the RSA’s drink-driving offences (seeDrink-driving offences”).

2 Providing a sample of fluid or blood within three hours of driving that contains a prescribed illicit drug (s 49(1)(h), (i))

This is similar to section 49(1)(f), (g); the “fail-the-test” drink-driving offences.

3 Refusing to provide a preliminary sample of oral fluid or a sample for oral fluid testing and analysis (s 49(1)(eb))

These offences are similar to section 49(1)(c), (e); the refusal of preliminary breath test or breathalyser test offences.

Prescribed illicit drugs are cannabis, methamphetamine and ecstasy. Unlike drink-driving offences (which generally require a BAC of 0.05 or above), the new drug-driving offences only require that the illicit drug be present. The penalties for these offences include licence cancellation and fines.

The testing procedure for the new drug-driving offences is also similar to general drink-driving testing procedure: a random roadside preliminary test will, if positive, be followed by a second, more thorough, test.

Unlike drug-impairment offences, the new drug-driving offences do not require proof that a driver’s ability to drive has been impaired.

Similar to drink-driving offences, prior convictions for drug-driving offences that occurred more than 10 years earlier do not automatically mean that the current offence is regarded as a second or subsequent offence, with the resultant increase in penalties.

Driving while disqualified or suspended

It is an offence to drive a motor vehicle while the authorisation granted to do so has been suspended; or during a period of disqualification from obtaining such authorisation. This offence is constituted by driving after a court or VicRoads has suspended a driver licence. However, once the period of licence disqualification has expired, a driver who has not had their licence restored is regarded as unlicensed, not disqualified (seeUnlicensed driving”).

For the offence of driving while your licence is disqualified or suspended, the penalty for a first offence is a $3,000 fine or four months imprisonment (a large fine is the usual penalty). For second and subsequent offences, the maximum penalty is a $24,000 fine or two years imprisonment. For this offence, the court can also cancel the registration of the driver’s motor vehicle (s 31) and extend the licence disqualification period.

Magistrates are not required to suspend or cancel licences for DWD, although some magistrates will make these orders even for a first offence. Drivers convicted of a second or subsequent offences face vehicle impoundment (seeSeizure of motor vehicles”).

It is possible to defend a charge of driving while disqualified on the grounds that the driver was unaware of the disqualification or suspension. Drivers should obtain legal advice on the merits of this defence. However, in the event that a driver is found not guilty of driving while disqualified, on the ground that they were unaware of being disqualified, a magistrate may order that the driver serve a period of licence disqualification in substitution for the time they claimed to have been unaware of the disqualification period (s 30A).

Unlicensed driving

Unlicensed driving is a common offence, and differs from the offence of driving while disqualified (seeDriving while disqualified or suspended”). This offence is constituted if a person drives on a public road without being the holder of a driver licence or permit authorising them to do so, or in breach of any condition of their driver licence or permit (s 18(1)).

A driver with an interstate licence who continuously lives in Victoria for three months or more must obtain a Victorian licence or face a possible charge of unlicensed driving (r 221(2)).

A driver convicted of unlicensed driving may face a fine, prison sentence and licence disqualification. Unlicensed drivers who would be subject to an alcohol interlock device if they had applied for licence restoration are subject to heavier fines or imprisonment orders than for unlicensed drivers generally (s 18(3)). These drivers are also subject to vehicle immobilisation orders (s 18(4)).

Dangerous driving

There are two separate dangerous driving offences:

1 driving at a speed dangerous to the public; and

2 driving in a manner dangerous to the public (see s 64(1)).

A driver found guilty of dangerous driving faces automatic licence or permit cancellation, and disqualification from obtaining a licence for at least six months. Also, if the speed alleged is 45 km/h or more over the speed limit, the minimum cancellation period is 12 months (s 64(2)).

Fines or imprisonment are additional penalties that may be ordered (s 64(2)). Courts may substitute a charge of dangerous driving for a charge of careless driving, which is a much less serious offence and does not require the offender to automatically lose their licence (s 64(3)).

Careless driving

Careless driving is a very common charge, and is often brought by police against a driver involved in a minor accident (e.g. running into the rear of another car). The Magistrates’ Court interprets this charge very widely as involving any situation where a driver fails to exercise a degree of care and attention that a reasonable driver should exercise in normal circumstances.

If a driver is found guilty of careless driving, they have to pay a fine of 2.4 penalty units (seeA note about penalty units”), and three demerit points are listed against their licence.

This option does not apply where the driver is a learner, on P-plates or under 18 years.

Other offences requiring licence disqualification

The RSA provides for:

an offence of entering a level rail or tram crossing while the lights are flashing or it is otherwise inappropriate to enter the crossing; this offence carries a minimum licence suspension of three months (s 68B) and four demerit points listed against the driver’s licence; and

an offence of failing to stop when directed by a police officer; this offence carries a minimum licence cancellation of six months (s 64A).