The Law Handbook 2024

654 Section 6: Houses, communities and the road incur the previous penalty of 10 demerit points (s 25(2A) Road Safety Act; see ‘2 VicRoads’ licence and permit powers’, above). However, this does not apply to drivers younger than 26 (s 50(1AC)), who must lose their licence for this offence. If the offence occurred on or after 30 April 2018 , all drink-drivers will have their licence automatically disqualified for a minimum period of three months. 2 Driver licence status, age and BAC Certain drivers must have zero BAC at all times (see ‘5 Failure to have zero blood-alcohol content’, above). For a driver who is subject to this condition, any BAC over 00 but below .05 results in their licence being automatically disqualified for a minimum period of three months. Full licence holders who are not subject to any restrictions must not have a BAC of .05 or over. Full licence holders who are older than 26 and who have a BAC of .05 or over must lose their licence for three months (s 89C). If the full licence holder is under 26, the minimum period of disqualification is six months. A driver’s prior drink-driving offences The penalties for drink-driving offences involving BAC readings vary according to the driver’s prior drink-driving offences. For example, an automatic loss of licence for three months occurs if the driver’s BAC is between .05–.07 on their first offence. For a second drink-driving offence, the driver loses their licence for 12 months. A ‘subsequent offence’ is a prior conviction (including an interstate conviction) for a drink-driving offence (s 48(2)). The Road Safety Act (ss 48(2), 49(2), (3)) distinguishes between a ‘second offence’ and a ‘subsequent offence’ (i.e. a third or more drink- driving offence) for the purpose of penalties for drink-driving offences. Penalties for second and subsequent BAC offences usually involve one or more of the following: • larger fines; • longer licence or permit disqualification; • potential imprisonment. Convictions that are more than 10 years old do not automatically make the current offence a second or subsequent offence, although magistrates tend to take into account any prior drink-driving convictions when fixing the length of licence disqualification for drink-driving offences (s 50AA). Defences to sections 49(1)(b) and 49(1)(f) offences It is possible to challenge BAC readings successfully when a charge is laid under section 49(1)(b) of the Road Safety Act. These defences are usually based on expert evidence. It is also possible for drink-driving charges to be challenged on the grounds that the police failed to comply with the drink-driving legislation. Successful challenges to BAC readings are becoming rarer. You should seek legal advice about this matter (see Chapter 2.4: Legal services that can help). Immediate licence suspension Immediate licence suspension occurs for: • full licence holders whose BAC is 0.10 or more; • probationary licence holders or permit holders whose BAC is 0.07 or more; • repeat drink-drivers who have had their licence suspended less than 10 years before; • drivers charged with drug impairment offences (see ‘Drug-driving offences’, below); • drivers who refuse to undergo a breathalyser test; and • drivers whose BAC is over the prescribed limit, and who also have illicit drugs present in their system. The immediate licence suspension for the drink- drivers mentioned above takes effect when the person is charged with the drink-driving offence. However, it may also be affected by giving the driver a notice suspending the licence, without the need to charge the driver with the offence. An immediate licence suspension notice can be cancelled if the driver can show exceptional circumstances. This can be done by making a submission to the informant’s senior sergeant. If you do not do this, or it is unsuccessful, you can appeal to the Magistrates’ Court. The above provisions were previously in section 51 of the Road Safety Act but are now in Part 6B of the Act. Licence restoration and licence eligibility orders Most drivers convicted of drink-driving are required to do certain things before their licence is restored. These requirements are becoming more onerous each year. The restored licence may also be subject to certain conditions. Licence restoration depends on: