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Police and drink driving

Information about police powers in relation to drink driving offences.

Only police can require a driver to undertake a preliminary breath test, unless the vehicle is a commercial motor vehicle, where other officers have been authorised.

Police must be in uniform

Police should be wearing the correct uniform so that they can be identified as members of the police force when they are conducting preliminary breath tests. The manual states that this is to include a safety vest. See:

Information that police should give drivers

Drivers should be informed of the process for taking a breath sample and of the consequences if they refuse to co-operate.

Police do not have to tell a driver what their preliminary reading is when they have been given a random breath test.

Serving a notice of immediate suspension

Police may give a driver notice that their licence is immediately suspended if the driver is charged with more serious drink driving offences of:

  • a full-licensed driver with blood alcohol concentration of 0.10 or more
  • a probationer or learner over 0.07
  • a drug assessment refusal offence
  • refusal to undergo a blood or urine test
  • driving while impaired by a drug
  • having a previous drink or drug driving offence within last 10 years
  • having a combination of alcohol and illicit drug while driving.

Before their licence is suspended the driver must be given a certificate stating their blood alcohol concentration reading of either their breath or blood.

Immediate suspension notices are not always immediate. Police may serve notice on a driver up to 12 months after the driver is issued with this certificate. Sometimes this happens because it takes some time for the results of blood analysis.

Immediate suspension is not affected by a driver giving notice of objection to a traffic infringement notice. The suspension period may be extended until matter is heard in court.

See s. 85—Road Safety Act 1986 (Vic)(opens in a new window) and What is immediate licence suspension?

If driver is not charged

This immediate suspension notice can't be given to the driver until they have been charged unless the driver has given a sample of blood or breath within 3 hours of driving.

If the driver is not charged the police must give them a certificate that states the concentration of alcohol in driver’s breath or blood.

See s. 85B—Road Safety Act 1986 (Vic)(opens in a new window)

If police believe driver is incapable of driving

If a member of the police force forms a reasonable belief that a driver (who is driving or about to drive) is incapable of having proper control of a vehicle they have power to:

  • forbid the driver from driving while incapable
  • require the person to hand over keys to their vehicle
  • take any steps reasonably necessary to prevent driver from driving vehicle.

Police may not immobilise a vehicle or the driver for any longer than is necessary when all circumstances are considered.

See s. 62—Road Safety Act 1986 (Vic)(opens in a new window)

Offence to try to prevent police from acting

It is an offence to try to stop a police officer from taking action to prevent a driver who they believe to be incapable from driving.

See s. 62(3)—Road Safety Act 1986 (Vic)(opens in a new window).

Penalty

The first offence is 5 penalty units. Subsequent offences are 8 penalty units or 1 month in jail.

See s. 62(3)—Road Safety Act 1986 (Vic)(opens in a new window).

More information

Legislation

Road Safety Act 1986 (Vic)

  • s. 49(1)—drink-drive offences
  • s. 49(2)—penalties for driving under the influence offences
  • s. 49(3)—penalties for other drink drive offences
  • s. 49(3AA)—maximum penalty for supervising driver
  • s. 62—police power to take keys from driver and penalty for obstructing police
  • s. 62(3)—penalty for trying to stop a police officer from taking action to prevent driver from driving
  • s. 85—immediate suspension
  • s. 85B—immediate suspension notice may be given at any time up to 12 months after the certificate is issued

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

Road Safety (General) Regulations 2019 (Vic)

  • Part 2—evidence relating to drug and alcohol procedures
    • r. 9—notice of immediate suspension

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

Transport (Compliance and Miscellaneous) Act 1983 (Vic)

  • s. 3—defines commercial goods and commercial passenger vehicles
  • s. 221A—authorised officer

See Transport (Compliance and Miscellaneous) Act 1983 (Vic)(opens in a new window).

Lawyers Practice Manual

The Lawyers Practice Manual has examples of certificates and more information about the penalties.

See Penalties for drink-driving and drug-driving offences [1.6.1010](opens in a new window). (subscription required)

Victoria Police Manual

For details of police policies and procedures that related to dealing with suspected drink-drivers, see:

Updated