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Drink driving infringements

This page explains when someone may get a traffic infringement notice for a drink driving offence.

When a fine may be issued

Police may choose to issue a driver with a fine (called a traffic infringement notice or TIN) for a drink driving offence if all of the following apply:

  • the driver is fully licensed
  • the driver’s blood alcohol concentration (BAC) reading was below 0.15, and
  • driver has no previous drink driving offences in last 10 years.

Other categories of drivers can be issued with a TIN if this was their first offence within the last 10 years and

  • they were a learner or probationer with BAC below 0.05
  • they were under 26 and fully licensed and their BAC was below 0.07, or
  • they were subject to a zero BAC and their BAC was below 0.07.

A person can also be issued with a traffic infringement notice if they were caught consuming alcohol while driving or while being a supervising driver.

See s. 88—Road Safety Act 1986 (Vic)(opens in a new window) and Item 118—130 Schedule 7—Road Safety (General) Regulations 2019 (Vic)(opens in a new window).

Withdrawal of fines

If a driver is issued with a traffic infringement notice for drink driving and it later becomes clear that the offence is not one that can be treated as a traffic infringement, the driver must comply with the fine notice until the matter is heard in court.

This might happen where police find out after issuing the infringement notice that driver had a previous drink driving conviction or that the BAC reading was higher than 0.15.

The prosecution officer will withdraw the fine and the driver will be charged with a drink driving offence.

What happens to the penalties

If the person objects to the fine and asks to challenge the matter in court the automatic conviction for the offence, which takes place 28 days after the date on the infringement notice, will not apply. This is because the fine will be withdrawn so that the matter can be heard and decided in court.

As a result of the fine being withdrawn, all of the penalties that are associated with the fine, such as licence cancellation, and payment of the fine and demerit points will not apply until such time as the court makes a decision to find the person guilty.

See ss. 89A(2), 89A(3), 89A(7), 89A(8)—Road Safety Act 1986 (Vic)(opens in a new window).

Taking the matter to court

The person who has been fined for a drink driving offence may decide to challenge the fine in court. To do this they must give a notice of objection stating that they refuse to pay the penalty and requesting that the matter be dealt with by a court. They must also state whether they intend to defend any charge arising out of the facts specified in the infringement notice. This form will be on the back of the infringement notice.

If a notice of objection is sent, the fine will be cancelled and the driver will receive a charge and summons.

Warning: If the driver is found guilty or convicted of the offence in court, they may face a higher minimum licence cancellation period than they would have if the matter had been dealt with as an infringement.

See s. 89A(5)—Road Safety Act 1986 (Vic)(opens in a new window).

Extension of time

If the infringement was not delivered to the driver personally, and the driver was not aware that a fine had been issued, before the notice takes effect as a conviction (that is 28 days after it was issued) then the person may apply to the infringements registrar asking for an extension of time to object to the notice. They have 14 days to do this after they become aware that they have been fined.

Once the registrar receives this notice of objection:

  • the fine will be cancelled
  • the conviction set aside
  • any disqualification, cancellation or suspension that resulted from the conviction will be set aside, and
  • any demerit points recorded as a result of the conviction will be cancelled.

The driver will receive a charge-sheet for the offence and the matter will be dealt with in court.

See s. 89B—Road Safety Act 1986 (Vic)(opens in a new window).

Time limit for filing the charge sheet

The charge sheet must be filed no later than 12 months after the date of the notice of objection.

See s. 89B(4)—Road Safety Act 1986 (Vic)(opens in a new window).

Penalties already served

When deciding on an appropriate penalty, the court has to take into account any period of suspension, disqualification or probation extension that the driver has already served when they were complying with the fine.

If driver was issued with a traffic infringement notice for previous drink-driving offence, that infringement takes effect as a conviction 28 days after issue of traffic infringement notice unless an objection is made.

See DPP v Croaker (2001) 34 MVR 397; 120 A Crim R 588; BC200106161; [2001] VSC 342 and s. 89A(2)(8)—Road Safety Act 1986 (Vic)(opens in a new window).

If the driver is convicted for another drink driving offence after this date, it will be treated as a subsequent offence.

Licence cancellation

If the offence happened after 29 April 2018, even though the matter may be dealt with as an infringement, the driver will be disqualified from driving and their licence or permit must be cancelled for:

  • 3 months for:
    • all drivers subject to Zero BAC (such as P-Plate drivers or taxi drivers) if BAC was less than 0.05, or
    • drivers aged over 26 who are fully licensed if their BAC is under 0.07, or
  • the minimum period set out in Schedule 1 according to the person's BAC for all other drink driving offences.

This licence cancellation takes effect if no notice of objection is given and the 28 day notice period has expired.

The driver must surrender their licence to VicRoads.

See ss. 50(1A)(a)(i), 89C—Road Safety Act 1986 (Vic)(opens in a new window) and Road Safety Act 1986 (Vic)—Schedule 1—Minimum disqualification periods(opens in a new window).

Alcohol interlock device

A person who is issued with a traffic infringement notice will still be required to have an interlock device fitted to their vehicle after they have served their period of licence cancellation. All drink driving offences that happen after 29 April 2018 will be subject to an alcohol interlock condition attached to their licence after they serve their period of licence cancellation.

See s. 50AAA(1)—Road Safety Act 1986 (Vic)(opens in a new window).

Offences that can be dealt with by issue of infringement notice

The offences for drink driving where a person can be issued with an infringement notice (fine) are:

  • unlawful BAC of less than 0.05 (if fzero BAC licence holder)—2.5 penalty units
  • BAC of 0.05 and less than 0.07—3.0 penalty units (regardless of age, or if subject to zero BAC or fully licensed)
  • BAC of 0.07 or more but less that 0.10—3.0 penalty units
  • BAC of 0.10 or more but less than 0.15—4.25 penalty units.

See Schedule 7—Road Safety (General) Regulations 2019 (Vic)(opens in a new window).

Drinking while driving or supervising a learner

A person can also be fined for:

  • drinking while driving or
  • drinking while supervising a learner driver.

If police issue a fine (infringement notice) for these offences, the penalty is 2 penalty units.

See s. 88(5A)—Road Safety Act 1986 (Vic)(opens in a new window). and items 129, 139 of Schedule 7—Road Safety (General) Regulations 2019 (Vic)(opens in a new window).

More information

Legislation

Road Safety Act 1986 (Vic)

  • s. 49B—offence of drinking while driving
  • s. 49C—offence of drinking while supervising a learner
  • s. 50(1AC)—where court has discretion not to record a conviction
  • s. 50AA—provisions related to drink driving offences where previous convictions over 10 years will be disregarded
  • s. 50AAA—direction to impose alcohol interlock condition
  • s. 88—issue of a traffic infringement
  • s. 88(5), (5A)—allows police to issue a fine for 'drinking while driving' offences and sets penalty at 2 penalty units
  • s. 89A(2)—effect of traffic infringement notices for drink driving offences
  • s. 89C—cancellation of licence or permit for drink driving infringements

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

Also see Road Safety Act 1986 (Vic)—Schedule 1—Minimum disqualification periods(opens in a new window).

Road Safety (General) Regulations 2019 (Vic)

  • r. 69—prescribed traffic offences
  • r. 70—penalties for prescribed traffic offences
  • r. 71—sets out the details that must be included in a traffic infringement notice
  • r. 71(1)(c)& (2)—the extra details that are needed if the infringement relates to an alleged drink driving infringement
  • r. 73—withdrawal of a traffic infringements notice
  • r. 74—proof of prior convictions
  • Schedule 7—matters that can be dealt with as traffic infringements

See Road Safety (General) Regulations 2019 (Vic)(opens in a new window).

Reference

Motor & traffic law—Victoria has commentary on:

  • subsequent offences [5605.110]
  • the Croaker case [5620.45].

Note: To access content type the brackets and number reference into the search box, for example '[5605.110]'

See Motor & traffic law—Victoria(opens in a new window).

Victoria Police Manual

Updated