Common driving offences

• Speeding offences

  Schedule 5 of the Road Safety Act (s 28(1)(a)) outlines the penalties for excessive speeding. If a driver is found guilty of speeding 25 kph or more over the speed limit, their licence is automatically disqualified for a minimum period. The court has discretion to increase the mandatory minimum disqualification period stipulated in the Road Safety Act (s 28). The penalty for speeding increases, depending on the speed limit.

  Licence disqualification periods for speeding

  Speed of the vehicle / Minimum period of licence disqualification:

  • Exceeding speed limit by 25 kph or more but less than 35 kph / Three months

  • Exceeding speed limit by 35 kph or more but less than 45 kph / Six months

  • Exceeding speed limit by 45 kph or more / 12 months

  • Any speed of 130 kph or more that is not covered above / Three months

  Any driver found guilty of driving 130 kph or more will lose their licence, irrespective of how far over the speed limit they were driving (this applies to driving 130 kph in a 110 kph zone).

  If a driver is found guilty of speeding less than 25 kph over the speed limit, they may be subject to an infringement notice, a fine and demerit points.

  It is possible for full licence holders with recent good driving records charged with minor speeding offences to apply to Fines Victoria for a warning to replace their fine for an infringement speeding offence (see ‘Infringement notice withdrawal’, above).

  Immediate licence suspension for speeding

  Drivers detected by police intercept cameras (not speed cameras) speeding 45 kph or more over the speed limit, or 145 kph or more in a 110 kph zone, will have their driver licence immediately suspended via a police notice (Road Safety Act ss 85F, 85G). 

  Drivers have a right to appeal these suspension notices in the Magistrates’ Court, but an appeal will only be granted in exceptional circumstances (s 85T). 

Drink-driving offences

Part 5 of the Road Safety Act contains seven types of drink-driving offences:

1. driving or being in charge of a motor vehicle under the influence (s 49(1)(a));

2. driving or being in charge of a motor vehicle while the BAC exceeds the prescribed limit (s 49(1)(b)); 

3. ‘fail the test’ offences (ss 49(1)(f), (g));

4. refusing a breath test (ss 49(1)(c)–(e)) or failing to undergo a blood sample in hospital after a motor vehicle accident (s 56);

5. failure to have zero BAC (s 52);

6. accompanying driver offence (s 48(1AA)); and

7. combined drink-driving and drug-driving (ss 49(1)(b), (c)).

• 1 Driving under the influence

  It is an offence to drive a motor vehicle while under the influence of intoxicating alcohol or drugs to such an extent as to be incapable of having proper control of the motor vehicle (Road Safety Act s 49(1)(a)). This offence is known as driving under the influence (DUI) and is usually brought against drivers obviously affected by alcohol. Police often bring a DUI charge against drivers who have a very high BAC (e.g. over 0.15 per cent) in addition to laying a charge of exceeding the prescribed limit of BAC. The maximum penalty for a DUI charge is more severe than for other drink-driving offences, both in terms of licence disqualification and in the maximum fine applicable. 

• 2 Driving while BAC exceeds the prescribed limit

  This offence is where a person is driving or being in charge of a motor vehicle while their BAC exceeds the prescribed limit (Road Safety Act s 49(1)(b)). The prescribed BAC limit is zero for probationary licence holders, learner permit holders and unlicensed drivers (s 52). The prescribed BAC limit for full licence holders is under .05. A drink-driving offence is committed by any driver whose BAC is .05 or over (replacing the old offence of driver’s BAC exceeding .05). The BAC is established by either a blood test or a breath test.

• 3 ‘Fail the test’ offences

  It is an offence for a driver – within three hours of driving or being in charge of a motor vehicle – to provide a breath sample (Road Safety Act s 49(1)(f)) or a blood sample (s 49(1)(g)) that exceeds the prescribed BAC. If alcohol is present in the sample, the analyst needs to demonstrate that the alcohol was not due solely to consumption after the driver finished driving. If this occurs, the driver may be charged under section 49(1)(b).

• 4 Refusing breath or blood tests

  There are four separate offences that involve refusal to undergo a breath or blood test. These offences are:

  1. refusal to undergo a preliminary breath test as required (Road Safety Act s 49(1)(c));

  2. refusal or failure to stop a motor vehicle and remain stopped as required at a preliminary breath test station (s 49(1)(d));

  3. refusal to undergo an additional breathalyser test if the preliminary test was positive for alcohol or if the preliminary test was refused (s 49(1)(e)); and

  4. failure to undergo a blood sample upon request in hospital after a motor vehicle accident (s 56).

  If a person is convicted of any of the above four offences, they must have their licence disqualified for a minimum period (see Road Safety Act sch 1b). They may also have to pay a fine and, in the case of a subsequent offence, be imprisoned (s 49(3)).

• 5 Failure to have zero blood-alcohol content

  Certain drivers must have zero BAC at all times while driving (Road Safety Act s 52). These drivers are:

  • probationary licence holders;

  • unlicensed drivers;

  • drivers of large vehicles;

  • learner permit holders;

  • drivers subject to alcohol-interlock conditions (i.e. drivers who are only licensed to drive cars fitted with a device that only allows the car to start when a zero BAC sample is provided);

  • holders of a full licence to drive a taxi;

  • commercial driving instructors;

  • full licence holders for the first three years after court-ordered licence restoration after drink-driving convictions; and 

  • motorcyclists for the first 12 months of holding a licence, irrespective of what other licences are held. 

  Exceptions to this are learners who hold full licences for other vehicles, unlicensed drivers who have simply failed to renew their licences, and drivers who hold full interstate licences.

  If a driver is convicted for failing to have zero BAC, their licence is disqualified for a minimum period of three months for a first offence and 12 months for subsequent offences (s 50(1)(a)).

• 6 Accompanying driver offence

  Licence holders who accompany learner drivers as non-professional driving instructors must have a BAC of less than .05. They must also adhere to their other obligations as licence holders. However, accompanying driver offences attract a fine and do not require automatic licence disqualification (see Road Safety Act s 3(1) (definition of ‘accompanying driver offence’); see also ss 48(2), 49(3AA), 50(6)).

• 7 Combined drink-driving and drug-driving offence

  This offence applies to drivers who have a higher BAC than permitted for their licence status, and who also have illicit drugs in their blood or fluid (when tested) (Road Safety Act s 49(1)(bc)). Penalties involve fines and/or imprisonment as for other drink-driving offences.

  There is also a minimum licence disqualification period. The time period varies and depends on the BAC and whether it is a first or subsequent offence. If the BAC is above .05 but below .07, the minimum licence disqualification period is 12 months for a first offence. 

  For subsequent offences, this licence disqualification period increases to a minimum of 24 months or five years, depending on the BAC reading (see sch 1AB).

• Penalties and other consequences for drink-driving offences

  Drivers who commit drink-driving offences may face the following penalties:

  1. minimum licence disqualification and fines and/or imprisonment;

  2. immediate licence suspension;

  3. seizure of their motor vehicle – this applies to first offenders with a BAC of 0.1 or over, and to more serious drink-driving offences;

  4. completion of a behavioural change program; and

  5. installation of an alcohol-interlock device when the licence is restored.

  Full license holders who are not subject to any restrictions must not have a BAC of .05 or over. All drink-drivers will have their license automatically disqualified for a minimum period of three months. 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 zero but below .05 results in their licence being automatically disqualified for a minimum period of three months.

  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 and .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:

  1. larger fines;

  2. longer licence or permit disqualification;

  3. 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 section 49(1)(b) and (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 2.3: 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:

  • the age of the driver;

  • the nature of the drink-driving offence;

  • the level of BAC in the drink-driving offence;

  • whether it was a first, second or subsequent offence; and

  • the type of licence held.

  VicRoads has taken over the management of licence restoration for the following offences:

  • drink-driving offences (including repeat drink-driving offences);

  • driving under the influence; and

  • refusing a breathalyser test.

  For the process and procedure of applying to get your licence back, refer to the VicRoads website (www.vicroads.vic.gov.au).

  You will need to apply to the Magistrates’ Court for a licence eligibility order if your licence has been suspended for one of the following offences:

  • drug-driving;

  • a serious motor vehicle offence; or

  • dangerously or negligently driving while pursued by police.

  All drink-drivers charged after 30 April 2018 with having a BAC of .05 or over must have an alcohol-interlock device fitted to their motor vehicle before their licence is restored. Other conditions for licence restoration may include having a zero BAC while driving for three years.

  Drivers who lose their licence for drink-driving offences should find out what requirements they must fulfil before their licence can be restored.

• Alcohol-interlock devices

  For drink-driving or drug-driving offences that occurred on or after 30 April 2018, all drivers with a BAC of .05 or over, or with drugs in their system, must have an alcohol-interlock device fitted to their motor vehicle for a minimum of six months.

  For more information about having a licence restored, contact the Magistrates’ Court (www.mcv.vic.gov.au) or visit the VicRoads website (www.vicroads.vic.gov.au).

• Behaviour change program

  Under the Road Safety Act, all drivers found guilty of drink-driving and drug-driving offences on or after 18 April 2018 must complete a behaviour change program before being eligible to have their licence restored (s 58C). There are two stages of the behaviour change program:

  • Stage 1 (s 58C): All drink-driving and drug-driving offenders must complete stage 1 to get their licences back; and 

  • Stage 2 (s 58D): All drink-driving and drug-driving offenders may have to complete stage 2 to get an alcohol-interlock device condition removed from their licence.

Drug-driving offences

• Drug testing

  Drivers may be required to undergo a drug assessment test (Road Safety Act s 55A(1)). This procedure must be videotaped (unless exceptional circumstances exist) (s 55A(6)) and a copy of the recording must be given to the driver (s 55A(7)). If, after the drug assessment test, police believe that the driver is drug-impaired (i.e. the driver’s behaviour during the test is consistent with drug-related behaviour) and this behaviour would result in the driver being unable to drive properly (s 49(3A)), the driver may be required to provide a urine or blood sample to an approved health professional (s 55B(1)).

• Drug-impairment offences

  There are three drug-impairment offences in the Road Safety Act:

  1. Driving while drug-impaired (s 49(1)(ba)). Drivers can defend this charge by establishing that the drug in their system was a prescription drug or a permissible non-prescribed drug (s 49(3B)). A charge under section 49(1A) (see ‘1 Driving under the influence’, above) may be reduced to a charge of driving while drug-impaired (s 49(8)) as the latter has a lesser licence disqualification penalty.

  2. Driving while having higher than the prescribed concentration of drugs in their blood (s 49(1)(bb)). Unlike drink-driving offences, the amount of prescribed drugs is zero for all drivers. This is similar to section 49(1)(b) of the Road Safety Act’s drink-driving offences (see ‘Drink-driving offences’, above).

  3. Refusing to undergo a drug-impairment assessment under section 55A (s 49(1)(ca)).

  4. Refusing to comply with a requirement under section 55B to provide a blood or urine sample after a drug-impairment assessment (s 49(1)(ea)).

  5. Providing a sample of fluid or blood within three hours of driving that contains a prescribed illicit drug (ss 49(1)(h), (1)(i)). This is similar to sections 49(1)(f) and 41(1)(g), which are the ‘fail the test’ drink-driving offences.

  6. Refusing to provide a preliminary sample of oral fluid or a sample for oral fluid testing and analysis (s 49(1)(eb)). These offences are similar to sections 49(1)(c) and 49(1)(e), which are the offences of refusing a preliminary breath test and refusing a breathalyser test.

  Prescribed illicit drugs are defined in section 3 of the Act. Unlike drink-driving offences (which generally require a BAC of .05 or above), drug-driving offences only require the illicit drug to be present.

  The testing procedure for drug-driving offences is similar to the general drink-driving testing procedure: if a random roadside preliminary test is positive, it will be followed by a second, more thorough test.

• Penalties

  A person who is convicted of driving with drugs in their blood (Road Safety Act s 49(1)(bb)) must have their driver licence disqualified for at least six months for the first offence and 12 months for the second and subsequent offences (s 50(1E)). A person who is convicted of driving while drug-impaired must have their licence disqualified for a minimum of 12 months (for a first offence) or two years (for second or subsequent offences) (s 50(1C)). For both offences, the driver may also have to pay a fine, or serve a jail term, particularly for subsequent offences.

  A driver who is convicted of the offences of refusing to undergo a drug-impairment assessment or refusing to comply with a requirement under sections 49(1)(ca) and 49(1)(ea), respectively, can have their licence disqualified for two years for the first offence and four years for second and subsequent offences (s 50(1D)).

  The provisions for immediate licence suspension for drug-impairment offences (s 51(1A)) are similar to the provisions for immediate licence suspension for drink-driving offences (see ‘Immediate licence suspension’, above). 

  Similar to drink-driving offences, prior convictions for drug-driving offences that occurred more than 10 years earlier do not automatically mean that the current offence is regarded as a second or subsequent offence. 

• Driving while disqualified or suspended

  It is an offence to drive a motor vehicle while the authorisation granted to do so has been suspended; or during a period of disqualification from obtaining such authorisation. This offence is constituted by driving after a court or VicRoads has suspended a driver licence. However, once the period of licence disqualification has expired, a driver who has not had their licence restored is regarded as unlicensed, not disqualified (see ‘Unlicensed driving’, below).

  Driving while disqualified has a maximum penalty of 240 penalty units (pu) or two years’ imprisonment for the first or subsequent offence (Road Safety Act s 30). See ‘A note about penalty units’ at the start of this book.

  Magistrates are not required to extend the period of suspension or disqualification for drivers found guilty of driving while disqualified, although some magistrates will make these orders even for a first offence. Drivers convicted of a second or subsequent offences face vehicle impoundment (see ‘Seizure of motor vehicles’, below).

  It is possible to defend a charge of driving while disqualified on the grounds that the driver was unaware of the disqualification or suspension. Drivers should obtain legal advice on the merits of this defence. However, in the event that a driver is found not guilty of driving while disqualified, on the grounds that they were unaware of being disqualified, a magistrate may order that the driver serve a period of licence disqualification in substitution for the time they claimed to have been unaware of the disqualification period (s 30A).

• Unlicensed driving

  Unlicensed driving is a common offence and differs from the offence of driving while disqualified (see ‘Driving while disqualified or suspended’, above). Unlicensed driving is when a person drives on a public road without holding a driver licence or permit, or in breach of any condition of their driver licence or permit (Road Safety Act s 18(1)).

  A driver with an interstate licence who continuously lives in Victoria for three months or more must obtain a Victorian driver licence or face a possible charge of unlicensed driving (Drivers Regulations reg 221(2)).

  If a driver is convicted of unlicensed driving or driving in breach of a licence or permit condition, the maximum penalty is 60 pu or six months’ imprisonment (Road Safety Act s 18(1A)).

  If the driver can demonstrate to the court that their licence was not disqualified, the penalty decreases to a maximum fine of 20 pu or one month imprisonment (s 18(2)). However, if the court is satisfied that the licence was disqualified at the time of driving and an alcohol-interlock order would have applied, the maximum fine increases to 240 pu or two years’ imprisonment (s 18(3)).

  These drivers may also be subject to vehicle immobilisation orders for up to 12 months (s 18(4)).

• Allowing others to drive while unlicensed

  It is an offence for an employer to employ or engage an unlicensed driver to drive a motor vehicle (Road Safety Act s 32(1)). A defence to this charge is if the employer made reasonable enquiries and believed on reasonable grounds that the driver was authorised to drive (s 32(2)). The maximum penalty for this offence is a fine of 20 pu.

• Dangerous driving

  There are two actions that may constitute a dangerous driving offence:

  1. driving at a speed dangerous to the public; or

  2. driving in a manner dangerous to the public (Road Safety Act s 64(1)).

  A driver found guilty of dangerous driving faces automatic licence or permit cancellation, and disqualification from obtaining a licence for at least six months. Also, if the speed alleged is 45 kph or more over the speed limit, the minimum cancellation period is 12 months (s 64(2)). A magistrate may also order a fine of up to 240 pu or two years’ imprisonment (s 64(2)). Courts may substitute a charge of dangerous driving for the lesser charge of careless driving, for which the offender does not automatically lose their licence (s 64(3)).

• Careless driving

  Careless driving is a common charge and is often brought by police against a driver involved in a minor accident (e.g. running into the rear of another car). The Magistrates’ Court interprets this charge widely as involving any situation where a driver fails to exercise a degree of care and attention that a reasonable driver should exercise in normal circumstances. If a driver is found guilty of careless driving, they have to pay a fine of up to six pu for a first offence and up to 12 pu for a second and subsequent offence and three demerit points are listed against their licence. 

• Seatbelt and mobile phone offences

  There are quite common driving offences that incur demerit points: seatbelt and mobile phone offences. New technology will detect these offences (similar to speed camera offence detection). If a penalty notice or charge is brought against a driver regarding these offences, then the road safety document will be presumptive proof of the offence (new ss 80B, 80D). Drivers wishing to challenge these offences must give 28 days’ notice to the police (and the court if applicable) (s 84AB).

• Failure to stop after an accident

  Drivers who fail to comply with their duties under section 61 of the Road Safety Act may risk immediate licence suspension. However, this only applies if a person has died or suffered serious injury and the police believe the driver is an unacceptable risk to drive until the charge is heard (s 851A).

• Other offences requiring licence disqualification

  Under the Road Safety Act, there is:

  • an offence of entering a level rail or tram crossing while the lights are flashing or when it is otherwise inappropriate to enter the crossing – this offence carries a minimum licence suspension of three months (s 68B) and four demerit points listed against the offender’s driver licence; and

  • an offence of failing to stop when directed by a police officer – this offence carries a minimum licence cancellation of six months for a first offence and 12 months for a second and subsequent offence. This offence also carries a penalty of a fine or a term of imprisonment (s 64A).

Common driving offences

Chapter: 6.8: Driving offences

Contributor: Peter Lynch, Accredited Criminal Lawyer, and Madeleine Lynch, Lawyer, Fitzroy Legal Service

Current as of: 1 September 2024

Law Handbook Page: 585

Next Section: Seizure of motor vehicles