Traffic and Driving matters encompass a wide range of road safety and criminal offences, including but not limited to: Drink Driving, Driving Whilst Disqualified / Suspended, Speeding Dangerous Driving, and Careless Driving.
It is not uncommon for individuals who have never before had any contact with the criminal justice system to find themselves faced with driving charges. Most driving matters are dealt with in the Magistrates’ Court and we endeavour to have such matters dealt with as quickly as possible, whilst providing quality legal representation.
We regularly represent people charged with exceeding the prescribed concentration of alcohol (or drink driving). We have successfully defended people in drink drive matters, achieved the minimum period of disqualification or suspension and have helped individuals get their licenses back.
If you are facing driving charges, please do not hesitate to contact our office and make an appointment to see one of our solicitors for a free consultation.
On 30 April 2018, the law changed in the area of drink driving offences for first time offenders with low range readings. For those caught driving with a reading of between 0.05 and 0.07 BAC, a period of disqualification will be immediately imposed by the Police, the offender will have to apply for the return of their licence by the Court and interlock provisions will apply.
In November 2020, the Victoria Government enacted a range of amendments to the Road Safety Act 1986 (‘RSA’), by repealing section 51 with the insertion of Part 6B. These amendments empower police to enforce immediate driver license and driver permit suspensions in drink or drug driving cases. They also empower immediate suspension in certain speeding cases, as well as instances where a driver causes injury or death with their motor vehicle.
Changes to immediate suspension of driver licence or permit for drink or drug driving
In accordance with Part 6B, section 85(1) of the act now empowers a police officer to suspend the driver licence or learner permit of a person charged with a drink or drug driving offence at any time after they have filed the charge sheet. In accordance with this amendment, section 85(3) has been included to clarify the blood alcohol level required for a person to be charged. The blood alcohol level required for a licence to be suspended, per section 85(3), is 0.10 grams or more per 100 milliliters of blood or (B) 0.10 grams or more per 210 liters of exhaled air for a driver on their full licence and 0.07 grams or more per 100 milliliters of blood or 0.07 grams or more per 210 liters of exhaled air for a driver on their learner permit or probationary licence.
Moreover, section 85A has been included to empower an immediate licence or permit suspension in circumstances where; a) a driver is driving under the influence of drugs, b) refuses to undergo a drug impairment test when instructed to do so, or c) refuses to provide a blood, urine or oral sample for testing.
Section 85B allows immediate licence or permit suspension in cases where a drive has completed a breath analysis or blood test analysis that shows a blood alcohol concentrate above the legal level within 3 hours. Additionally, it allows for the immediate suspension of a driver licence or permit in cases where the blood sample has been sent for professional analysis and comes back with a positive result. Under section 85B, the police officer has 12 months after receiving the positive result to enforce the suspension.
Changes to immediate suspension of driver licence or permit for speeding offences
The amendments made to the RSA have also extended to the insertion of provisions empowering the immediate suspension of driver licences and permits for certain speeding offences. Pursuant to section 85F, police are empowered to suspend the licence or permit of a driver who has been detected speeding immediately after the charge sheet has been filed. The relevant speeding offences necessary to enliven this section is detailed within section 85F(2)(a)(i), which stipulates that a driver speeding 45 kilometres per hour or more over the applicable speed limit is in breach. Additionally, pursuant to section 85F(2)(a)(ii) if the applicable speed limit was 110 kilometres per hour, a driver will be in breach if they were driving at a speed of 145 kilometres or more per hour. Moreover, section 85H stipulates that a suspension made under section 85F will remain in place until either; a) the charge is determined, b) the charge is withdrawn, or c) the suspension is cancelled on appeal. If none of these occur, the suspension will remain in force until a period of 12 months expires after the initial notice was given.
Changes to immediate suspension of driver licence or permit for offences resulting in injury or death
Under section 85I, a senior police officer who is of or above the rank of sergeant, is empowered to immediately suspend the licence or permit of a person who has been charged with a relevant offence. Relevant offences under this provision include murder, attempted murder, cause injury or serious injury with their vehicle. For charges and subsequently a suspension to be made, the senior police officer must be reasonably satisfied that; a) the person used a motor vehicle in the commission of the relevant offence resulting in injury or death, or b) the person is an unacceptable risk to road safety until the charge is determined. Pursuant to section 85J, the suspension under this charge would remain in place until a) the charge is determined, b) the charge is withdrawn, or c) the suspension is cancelled on appeal.
Effect of suspension & Appeal process
Section 85O stipulates that a person who has their driver licence or permit suspended in accordance with section 85 is disqualified from obtaining a further licence or learner permit until their suspension has been completed and further, must not apply for a licence or permit whilst under suspension. However, under section 85S the suspension may be appealed to the Magistrates’ court if the person can demonstrate ‘exceptional circumstances’ for their offending. For an appeal to be commenced, either the Chief Commissioner of Police or the magistrate’s registrar must be provided with at least 14 days written notice. Moreover, within the appeal, the individual must include reasons as to why they should not be considered an ‘unacceptable risk’ to road safety. Upon appeal, the magistrate will have discretion to either confirm or cancel the suspension.
Drink & drug driving, licence cancellation & disqualification
Drink Driving, Cancellation and Disqualification
‘Drink driving offences’ can be divided into the following categories –
- sub 05 drink drive offences;
- sub 07 drink drive offences;
- drink drive offences where the BAC reading was above 0.07;
- offences of driving a motor vehicle while under the influence of intoxicating liquor or any drug to such an extent that he or she was incapable of having proper control of a motor vehicle; and
- Refuse test offences.
Which category an accused falls within will determine the duration of the licence cancellation and disqualification. A person’s licence can be cancelled and a period of disqualification imposed by either a Court or by an Infringement Notice issued by the Police, which takes effect 28 days after it has been issued. The minimum disqualification periods are the same, regardless of whether you are required to attend Court or whether it has been imposed by an infringement. However, receiving an infringement negates the need to attend Court and allows you to apply to VicRoads for the return of your licence at the conclusion of the disqualification period. If your licence has been cancelled by Infringement Notice, you must surrender your licence to VicRoads within the designated period specified on the Notice.
Section 51 of the Road Safety Act also allows for Police members to immediately suspend your licence by issuing a section 51 Notice in circumstances where you return a reading of 0.10 BAC or more for a fully licensed driver or 0.07 BAC or more for a learner or probationary driver. If you are served with such a Notice, any period of suspension that you have served will be deducted from the cancellation and disqualification period imposed upon you at Court when you are sentenced for the offending. We are often asked whether you can obtain an exemption to cancellation, suspension or disqualification of your licence on the basis that you require your licence for work (for example, you are a truck driver, trades person or taxi driver). The law in Victoria no longer allows for a person requiring their licence for work to retain their licence in any circumstances where the law states that they must have it cancelled for drink driving. There is no such thing as a work exemption or a conditional cancellation. However, depending on your reading, age and prior history, there may be an avenue through which you may avoid cancellation. See below –
Sub 05 offences
Arise where a person is required to have a 0.00 BAC and where the concentration of alcohol in their blood is less than 0.05. If the Court does not convict an offender, there is a discretion as to whether the Court cancels and disqualifies the licence, if:
- The offence is a first offence; and
- The offender has a full licence in another state, territory or country.
If a person is convicted of a first offence, the offender must be sentenced to at least 3 months licence cancellation and disqualification. However, the period of cancellation and disqualification must not exceed 6 months if the offence is a first offence.
Sub 07 offences
Arise where the concentration of alcohol in a person’s blood is between 0.05 and 0.07, when it is required to be 0.05 BAC or less. If the Court does not convict an offender, there is a discretion as to whether the Court cancels and disqualifies the licence, if:
- The offence is a first offence;
- At the time the offence was committed, the offender held a full licence;
- At the time the offence was committed, the offender was 26 years or older; and
- At the time of the offence, the offender was not a person required by section 52 to have a zero blood alcohol reading.
If a person is convicted of a sub 07 offence, the Court must cancel and disqualify the offender from driving for at least 6 months.
Drink Drive offences with a reading 0.07 BAC or more
Where a person is found guilty or convicted of a drink drive offence where the BAC is o.o7 or more, the disqualification periods vary depending on the reading and whether it is a first or subsequent offence. The minimum period can vary from 6 months to 2 years for a first offence. The disqualification period for a subsequent offence can vary between 12 months and 4 years. There is a table of minimum disqualification periods included in Schedule 1 of the Act.
Incapable of having proper control offences
Where a person is convicted or found guilty of one of these offences, the court must cancel the offender’s licence and disqualify he or she from driving for a period not less than 2 years for a first offence and 4 years for a subsequent. This is in addition to any penalty handed down for the offence itself, such as a fine, term of imprisonment or the like.
Refuse test offences
It is an offence to refuse to participate in a breath test or drug impairment test, which involves an oral test or, a blood or urine sample.
A conviction or finding of guilt for refusal to participate in a drug impairment test (requiring an oral test) is an offence which requires the Court to cancel the offender’s licence and disqualify them from obtaining a licence for at least 6 months for a first offence and 12 months for a subsequent offence
A conviction or finding of guilt for refusal to participate in a drug impairment test (requiring a blood or urine test) is an offence which requires the Court to cancel the offender’s licence and disqualify them from obtaining a licence for at least 2 years for a first offence and 4 years for a subsequent offence.
Drug and driving offences
In August 2015, the Victorian Parliament introduced section 49(1)(bc) of the Road Safety Act, which requires that a person who drives a motor vehicle while both the prescribed concentration of alcohol is present in their breath and the prescribed concentration of drugs is in their blood is guilty of a new offence. In the case of a first offence, the person may be fined up to 30 penalty units (see our Penalties and Infringements Section for more information). For a second offence, where the relevant readings are less than 0.15 grams, the person may be fined up to 90 penalty units or imprisoned for up to 6 months. For a second offence, where the relevant readings exceed 0.15 grams, the person may be fined up to 180 penalty units or imprisoned for up to 12 months.
For any other subsequent offence, meaning a third offence or greater, the penalties vary between 180 penalty units and 270 penalty units and between 12 and 18 months imprisonment, dependent on the reading. Regardless of whether the offender is convicted or found guilty, if the offender holds a licence or permit, that licence or permit must be cancelled and the offender disqualified from obtaining a licence for the requisite period of time proscribed by the legislation. Once the period of disqualification has elapsed, the offender will be required to complete a driver’s education course before applying for the return of their licence. There will also be mandatory interlock requirement periods, ranging from 6 months to 4 years, depending on whether this is the person’s first offence or a subsequent offence and what their reading was.
Interlock devices and licence restoration
Once you have completed your period of cancellation and disqualification, you must complete an accredited driver education program before you can re-apply for your licence. If you have been convicted or found guilty of a drink drive offence and have had your licence cancelled, an interlock condition must be imposed on your licence for at least 6 months. A longer period can be imposed for higher readings. For first time offenders with readings under 0.10BAC, you may apply to VicRoads for the return of your licence.
All offenders whose licences are cancelled will have a condition imposed on their licence that their car be fitted with an interlock device, which is installed, serviced and monitored at your expense. As of January 2015, the Government will also recoup an monthly fee from you for the operation of the Victorian Interlock Program. You will pay $39.70 per month for the operation of the Program on top of the operating and service costs imposed by the interlock provider. If you have your licence restored to you by VicRoads, you will have an interlock condition for 6 months. However, if you must appear before a Court, the Magistrate may impose a longer interlock duration.
In order to have the interlock condition lifted, where the condition was imposed by VicRoads, there is now an avenue whereby you can apply to VicRoads to have the interlock condition removed from your licence (and therefore the interlock device removed from your car) pursuant to section 50AAAB, once you have served your minimum interlock period. If your licence was restored and the interlock condition imposed by the Magistrates’ Court, you must apply to the Court for the interlock condition to be removed. Similarly, if VicRoads has refused to remove the condition and you wish to appeal this decision, you may do so to the Magistrates’ Court.
An application (to either VicRoads or the Court) is usually refused if your interlock readings provided in a report from your interlock provider show that you attempted to start the vehicle whilst alcohol was present on your breath. Since January 2015, many interlock devices are also fitted with cameras which take several photos a day. This assists to avoid any doubt as to who was attempting to start the car, if there is a dispute about that.
Drive whilst disqualified/suspended
The offence of driving whilst your licence is suspended or disqualified comes before the Magistrates’ Court frequently. Up until relatively recently, it was mandatory to sentence a person to a period of imprisonment for one month if they were found driving whilst disqualified or suspended on a third occasion. This requirement no longer exists. However, the Courts deal with these matters very seriously because in most cases the offence has a background of significant road and traffic offences, which gave rise to the disqualification or suspension in the first place. At the back of every Magistrates’ mind is that, if an offender comes before the Court on these offences and they do not sentence them in a way that will deter them from poor and, sometimes, dangerous driving, they may go back out on the road, offend and seriously injure if not kill someone.
The penalties for drive whilst disqualified are, for a first offence, 30 penalty units or imprisonment for 4 months and, for a subsequent offence, 240 penalty units or imprisonment for 2 years. The penalties for driving whilst suspended are most often fines for first offences, but can include periods of imprisonment for subsequent offences. For more information on penalty units, visit our Infringements and Penalties page.
In circumstances where the Magistrate believes that the community must be protected and the offender punished further, they also have the power to extend the period of the disqualification or suspension.
Dangerous driving & careless driving
It is an offence to drive a motor vehicle at a speed or in a manner which is dangerous to the public. If you are convicted of this offence, you are liable to a fine of not more than 240 penalty units or to a term of imprisonment of up to 2 years. The Court must also cancel your licence and disaqualify you from obtaining another one for a period not less than 6 months. If the vehicle was driven at a speed of 45km per hour or more over the speed limit, the disqualification must be for 12 months at least. However, the Courts always have the power to increase the disqualification period if it deems fit. You may also have had your vehicle impounded, so see below for further information. For more information on penalty units, visit our Infringements and Penalties page.
Under section 65, person who drives a motor vehicle carelessly is guilty of an offence and liable for a first offence to a penalty of not more than 12 penalty units and for a subsequent offence to a penalty of not more than 25 penalty units.
Note about driving whilst operating a mobile phone – – If you are caught using a mobile phone whilst driving, you may receive an on the spot fine of $443 dollars and 4 demerit points. However, if you are distracted by your phone and are involved in an accident, the ramifications may be much more severe, particularly if someone is injured or killed. If no injury results, you may be charged with careless driving as well as using a mobile phone whilst driving.
If you are caught speeding, but not charged with dangerous driving due to your speed, you may walk away with a simply infringement notice issued by Victoria Police. If you have not received a speeding infringement within the last 2 years and the speed you were driving was less than 10 kilometres over the speed limit, or you have not received a speeding infringement within the last 3 years and you were driving between 10 and 14 kilometres over the speed limit, you may apply for an official warning from the Police. This means that no further action is taken against your licence and you do not have to pay the fine. Official warnings may also be given, where special or exceptional circumstances apply.
Impoundment, immobilisation and forfeiture of vehicles
If a Police officer believes on reasonable grounds that a vehicle is being or has been involved in the commission of a relevant offence, he or she may search the vehicle, direct a person over 18 years to provide information concerning the location of the motor vehicle, seize the vehicle or require it to be surrendered, impound or immobilise the vehicle for the designated period of time. Relevant offences fall into two tiers under the legislation, but include unlicensed driving, drive whilst disqualified, certain drink drive offences, serious speeding offences, improper use of a motor vehicle (ie doing burn outs) and a number of other offences. The designated period of these orders is 30 days and, at the expiry of this period, you will have to pay a significant fee to retrieve your vehicle from impound.
If you are found guilty of a relevant offence by a Court, the Court can (on application by the Chief Commissioner of Police) forfeit your vehicle to the state. Any person served with a Notice or who has an interest in the vehicle may apply to the Court to be heard in relation to the forfeiture application. The Court must not make a forfeiture order if the Court is satisfied that the relevant offence was committed without the knowledge or consent of the registered operator.
Safe driving programs
If you are found guilty of an applicable offence (often referred to as ‘hoon driving offences’) and impounded, immobilised or forfeited, you must complete a safe driving course as a condition of your sentence and in order to have your licence restored at the end of your disqualification period. If you do not do so, your licence will be suspended (if it wasn’t already) or further suspended. If you do not have a licence, you will be prohibited from applying for one until you have completed the course.