An area of law that is often dealt with serious civil consequences, of which can also turn into criminal sentences if there is an involvement of a serious accident, or injury in the drink driving matter. Victoria is a state that has strict liability in their drink driving laws, which literally means that the accused need not have intended to commit the act; but had done so anyway.

The Law that governs drink driving in Victoria is the Road Safety Act 1986. Upon reading the following, Jay & Co hope that you have a sound understanding of the legalities involved in a drink driving offence; and what is required to defend a drink driving charge.

Section 49(1)(a):- A person is guilty of an offence if he or she drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control over the vehicle.

PROCEDURE

1. Road Safety Act s.53:- A member of police may require a person found driving or in charge of a motor vehicle, a driver of a motor vehicle at a preliminary breath test station, a person who on reasonable grounds was believed to be in charge of a motor vehicle within 3 hours of an accident, or an occupant of a motor vehicle within 3 hours of an accident when the driver has not been ascertained to undergo a preliminary breath test by a prescribed device. An example of a preliminary breath testing station is a booze bus. The preliminary breath test is only an indicator if there is alcohol in the system and the police member is not obligated to disclose this reading. If there is a suspicion of alcohol in the system, then

2. Road Safety Act s.55:- A member of the police may, on the completion of a preliminary breath test by a person; which has indicated a presence of alcohol (or that person refuses to furnish their breath sample); require that person to accompany them to a police station, or a breath test station, public building or a police car to furnish a sample of breath and to remain there until their breath has been furnished.

3. Road Safety Act s.56:- Permits for a person over the age of 15 years, who is in examination or treatment as a consequence of a car accident to have a sample of their blood taken by a doctor or a health professional.

Disqualification and Interlock requirements

For the relevant disqualification periods relating to drink driving for first and subsequent offences, you can refer to Schedule 1 of the Road Safety Act. This schedule has been organised to take into account the level of blood alcohol concentration levels and indicates the period of licence suspension accordingly.

Schedule 1AB sets out the relevant disqualification periods relating to combined drink and drug driving offences and once again, is organised according to blood alcohol concentration levels and the corresponding periods of suspension.

Schedule 1B relates to alcohol interlock requirements. This schedule has been organised according to the relevant offence.

In regards to the Section 51 notices, if you wish to challenge this, an appeal must be lodged to the relevant Magistrates’ Court outlining any exceptional circumstances that exists in the situation. One being that the case has a strong meritorious grounds for the accused’s success. These grounds may be evidentiary or on points of law.

In regards to Alcohol Interlocks, they are usually fitted into cases of serious drink driving situations, whereby there has been a motor vehicle accident, or an extremely high reading by a young driver.

Keep in mind that in all Drink Driving offences, the prosecution still bears the burden of proof. This burden carries through having to prove that the accused was operating, or in control of the vehicle and that the reading was obtained through the required protocols. The actual BAC reading is not very relevant to contesting a Drink Driving Charge, in fact Evidentiary laws and procedure is in fact crucial. Every case is different and will be unique in ascertaining whether there is a real possibility at contesting a drink driving charge.

If you require assistance in any of these sort of matters, contact the Jay & Co team for further information.