The most common drink driving charge in Victoria is “driving with more than the prescribed concentration of alcohol” in your blood. The prescribed blood alcohol concentration (BAC) is 0.05 percent unless you have a learner or probationary licence or drive a bus, taxi, or certain other vehicles.
“Over the limit” driving is a criminal charge in Victoria that requires you to appear in court. This article will help you understand what will happen in court, but it is always a good idea to seek the advice of a lawyer before you make a court appearance on a criminal charge.
You can plead guilty at your first court appearance if you have no defence or do not want to contest the charge. You may receive a lesser penalty if you take responsibility for the offence and plead guilty at your earliest opportunity. You should express your remorse, acknowledge that you made a mistake, and promise to do better in the future. Making excuses will only persuade the magistrate that you are not taking responsibility for your conduct. That could lead to a harsher punishment.
If you want to contest the charge, plead not guilty. The court will then schedule a contested hearing to determine whether the prosecution can prove your guilt.
If you want to contest the charge, you will have a better chance if you are represented by a lawyer. You should consult with a lawyer before the date scheduled for your contested hearing. If you appear at the contested hearing and ask for an adjournment so that you can find a lawyer, the magistrate may agree to an adjournment, but you are taking a risk that the magistrate will not grant an adjournment and will force you to proceed without a lawyer.
The most common defences to driving with more than the prescribed BAC are:
To establish that the test is not accurate, you will need more than your own testimony that you did not feel drunk. To learn whether the facts in your case might allow you to bring this (or any other) defence successfully, you should consult with a lawyer.
If your BAC was 0.10 percent or higher (0.07 percent if you have a learner or P-plate licence), the police will suspend your licence automatically. The suspension will commence on the date indicated in the suspension notice and will last until your court date.
If you plead guilty or are convicted after a contested hearing, the court will generally cancel your licence. If your BAC was less than 0.10 percent, the cancellation will be for a minimum of 6 months. Higher BAC levels result in longer cancellations. You will be disqualified from driving while the cancellation remains in effect. If your BAC was 0.07 percent or higher, your disqualification remains in effect until you restore your licence with VicRoads.
If you are over the age of 26 and your BAC was less than 0.07 percent, the court can choose not to record a conviction against you. This applies only to a first offence and can only happen once in your lifetime. If you plead guilty but are not convicted, there will be no licence cancellation but VicRoads will assess 10 demerit points against your licence. No demerit points will be assessed if your licence is canceled.
The court will impose a fine if you are convicted. A higher BAC will usually result in a higher fine. The fine for a first offence drink driving can be as high as 20 penalty units. One penalty unit is currently $147.61. You may be able to obtain a payment plan that allows you to pay the fine in installments.
You can appeal the magistrate’s decision to the county court but you must file the appeal within 28 days. Since the county court might impose a harsher penalty after you appeal, you should seek legal advice about the wisdom of appealing.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.