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Appealing against an alcohol interlock order

This provision now only applies to the driving offences under the Sentencing Act 1991 where a person is required to apply to court for a licence eligibility order after they have served their minimum licence cancellation period.

See ss. 31A, 31KA, 31KB, 50AAA—Road Safety Act 1986 (Vic)(opens in a new window)

A person cannot appeal a VicRoads decision to issue an interlock condition

This does not apply to offences where VicRoads has responsibility for imposing an alcohol interlock licence condition. A person may not appeal to the Magistrates' Court against a decision by VicRoads to issue a licence with an interlock condition under ss. 31KA or 31KB.

The only exception to this is where the court would have had discretion to impose an interlock condition under Schedule 1B before 1 December 2019. The Avenue for this appeal is under s. 50AAAF.

See s. 26(5), 50AAAE, 50AAAF—Road Safety Act 1986 (Vic)(opens in a new window) and Getting an interlock exemption.

When a driver may appeal to the County Court

Where a magistrate imposes an interlock device as condition of re-issuing a licence, the driver may appeal to County Court in cases where:

  • the magistrate had discretion to make an alcohol interlock direction or
  • if the direction was mandatory and the magistrate directed the interlock to be imposed for longer than the mandatory minimum.

Note: From 1 December 2019 all drivers who are disqualified from driving for a drink driving offence must have an alcohol interlock fitted as a condition of being relicensed.

So this will only apply to divers who must apply to the court for a licence eligibility order who have committed offences under the Sentencing Act where the alcohol interlock condition was listed as discretionary under Road Safety Act 1986 Schedule 1B at the time the offence was committed.

See Road Safety Act 1986 (Vic)—Schedule 1B—Alcohol interlock requirement(opens in a new window).

Appeals where interlock is mandatory

If the interlock licence condition is mandatory the driver can appeal against an interlock condition if the period imposed by court was longer than the mandatory minimum for the offence.

See How long will an interlock condition apply?

For example, if driver has an interlock condition imposed by court for refusing to be breathalysed and they had a previous drink-driving conviction, the court has no discretion. It must impose an interlock condition for a minimum period of 4 years.

However, had that court imposed a 5 year interlock condition, the driver could appeal to County Court for reduction of interlock condition to 4 years rather than 5 year period ordered by Magistrates' Court.

Magistrate's decision is not stayed

The lodgement of an appeal does not 'stay' (put on hold) the decision of the Magistrates' Court, but the court may choose to stay its operation until the appeal has been decided.

If the court decides to stay the decision (to impose an alcohol interlock licence condition) it must notify VicRoads immediately

See ss. 50AAC(3), 50AACB—Road Safety Act 1986 (Vic)(opens in a new window).

More information

Legislation

Road Safety Act 1986 (Vic)

  • s. 26—appeal to the Magistrates' Court
  • s. 50AAA—directions to impose alcohol interlock condition
  • s. 50AAB—when alcohol interlock condition can be removed
  • s. 50AAC—appeals against direction to impose interlock
  • s. 50AACB—Court must notify VicRoads of certain matters
  • s. 50AAAE—application to avoid imposition of alcohol interlock condition
  • s. 50AAAF—application to Magistrates' Court for review of decision under s. 50AAAE
  • Road Safety Act 1986 (Vic)—Schedule 1B—Alcohol interlock requirement(opens in a new window).

See Road Safety Act 1986 (Vic)(opens in a new window).

Criminal Procedure Act 2009 (Vic)

  • s. 254—right of appeal

See Criminal Procedure Act 2009 (Vic)(opens in a new window).

Sentencing Act 1991 (Vic)

  • s. 87P—defines a serious motor vehicle offence
  • s. 89—suspension or cancellation of driver licence or learner permit and driver disqualification for certain motor vehicle offences

See Sentencing Act 1991 (Vic)(opens in a new window).

Related pages

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