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Drink Driving

Drink Driving

1. Introduction

Every state and territory in Australia makes drink driving an offence. The government uses the phrase "drink driving" to emphasize that the law is not limited to "drunk driving." Whether someone is drunk, or too drunk to drive, requires a subjective assessment of the driver's impairment. While there are laws against impaired driving that depend upon that assessment, other laws prohibit driving when a breath or blood test reveals that the driver has a prohibited blood alcohol level. Since that level might be reached after only one or two drinks, a driver does not need to be drunk to violate drink driving laws.

This eBook is intended as a basic guide to the drink driving laws in Victoria, New South Wales, Queensland, South Australia, and Western Australia. For the most part, drink driving laws are the same or similar in each state. As this eBook explains, however, the law can differ from state to state. This eBook provides examples of those differences but it does not try to explain the law of each state in detail. To read the actual language of the law in your state, refer to:

Victoria: Road Safety Act 1986, section 49
NSW: Road Transport Act 2013, sections 110, 112
QLD: Transport Operations (Road Use Management) Act 1995, section 79
SA: Road Traffic Act 1961, sections 47, 47B, 47E
WA: Road Traffic Act 1974, sections 63, 64AA

Those statutes will refer you to other statutes that are part of a comprehensive scheme. Keep in mind that the law is always subject to change and that drink driving law is too complex to cover in detail in a short eBook. Also keep in mind that this eBook is intended to provide you with basic information. It does not provide legal advice. Every person's case is different. Legal advice can only be provided by a lawyer after assessing the unique facts of your case. If you have been accused of a drink driving offence, you should obtain legal advice by consulting with a qualified lawyer in your area.

2. What is drink driving?

A person commits a drink driving offence by driving a motor vehicle:

  • While under the influence of alcohol or any drug to an extent that make the driver incapable of having proper control of the vehicle; or
  • With a blood alcohol concentration in excess of a specified limit; or
  • While impaired by a drug; or
  • With more than the prescribed dosage of a drug in his or her blood.

People other than a driver can commit the offence of drink driving under certain circumstances.

3. Who can be held responsible for drink driving?

The law always applies to the "driver" of a motor vehicle. The conventional definition of "driver" is someone who is controlling the speed or direction of a vehicle after setting it in motion.

The law applies to other people as well, but the applicability of drink driving laws to someone other than the driver of a motor vehicle varies from state to state. In Victoria, for instance, the law applies to a person who is "in control" of the vehicle even if that person is not driving. A similar provision in Queensland applies the law to someone who is "in charge" of the vehicle, which could include someone who is sleeping in the back seat and has no intention of driving. South Australia applies the law to anyone who is attempting to put the vehicle in motion, as does New South Wales if that person is sitting in the driver's seat. In some states, the law applies to a passenger who is supervising a learner driver.

If you are charged with a drink driving offence but you were not actually driving, ask a lawyer in your area whether the offence applies to your situation and whether you might have a defence to the charge.

4. What vehicles and places are subject to drink driving laws?

In all states, driving a motor vehicle (a car or truck) on a public road subjects you to drink driving laws. In some states (Queensland, for example), you are subject to drink driving laws whether you drive a motor vehicle on a public road or on private property.

Drink driving laws may also apply to certain boats and jet skis. In some states (including Queensland), you must obey drink driving laws if you are riding a bicycle (or any other wheeled vehicle) on a public road.

If you have been accused of a drink driving offence but you were not behind the wheel of a motor vehicle that was in motion with the engine running, you should consult with a lawyer in your area to determine whether the drink driving laws apply to your situation.

5. How much alcohol can you have in your blood while driving?

The amount of alcohol in your blood is known as a blood alcohol concentration (BAC). It is expressed as the number of grams of alcohol present in 210 litres of breath or in 100 millilitres of blood. The prescribed concentration of alcohol (PCA) is the BAC that triggers drink driving offences. The PCA that is allowable for drivers depends upon the circumstances. Those circumstance vary from state to state.

For all drivers in all states, it is an offence to drive with a BAC of 0.05 or higher.

In some states, drivers are subject to higher penalties if they drive with a BAC between 0.08 and 0.15. In other states, drivers are subject to higher penalties if they drive with a BAC of 0.10 or higher.

Drivers are generally subject to the harshest penalties if they drive with a BAC of 0.15 or higher.

Zero tolerance laws

Certain drivers in most states are subject to "zero tolerance" laws. Driving with a BAC above zero is an offence. Those laws typically apply to:

  • Drivers with a learner's licence;
  • Drivers with a provisional (P1 or P2) licence;
  • Drivers who are not eligible to drive because their licences have been cancelled or suspended, who are unlicenced, or who have an expired licence.

In some states, drivers who are prohibited from driving with a BAC above zero may face harsher penalties if they drive with a BAC of 0.02 or higher.

Sometimes (in NSW, for example) a defence is available to driving with a BAC of more than zero but less than 0.02 if alcohol was consumed during a religious ceremony. Ask a lawyer in your area whether that defence is available to you.

Commercial drivers

Commercial drivers are generally subject to a lower BAC. In Queensland and Western Australia, for example, most commercial drivers commit an offence if they drive with a BAC above zero. In NSW, commercial drivers commit an offence if they drive with a BAC above 0.02. Commercial drivers generally include:

  • Drivers of public transportation (taxi and bus drivers)
  • Drivers of large trucks
  • Drivers transporting explosives or other dangerous goods

Queensland also applies its "zero tolerance" law to drivers of tractors and tow trucks.

6. Can I drink after driving?

The law generally presumes that a blood or breath sample taken within 2 or 3 hours after you stopped driving will accurately reflect your BAC at the time of driving. Some drivers try to overcome that presumption by drinking after they stop driving but before they are tested. A driver involved in a car accident, for instance, might duck into the nearest bar to consume a few beers before the police arrived to investigate the accident. Drinking after driving makes it difficult or impossible to establish a BAC at the time of driving.

To deprive drivers of the defence that their BAC test results reflected alcohol consumption after they stopped driving, some states (including New South Wales) make it an offence to consume alcohol between the time of an accident and testing or while waiting for a test to be administered. Other states (including South Australia) recognize that drinking after driving ended but before testing began might, under some circumstances, provide a defence to the charge.

If you drank alcohol after you were involved in a traffic accident but before your breath or blood was tested, you should talk to a lawyer about how the alcohol you consumed after driving might affect your case.

7. What is a refusal offence?

The police are empowered to demand that drivers provide breath samples that are collected and analyzed by a preliminary breath testing device. Those samples can be demanded at breath testing stations, "booze busses," or by officers who stop drivers for the purpose of requesting a preliminary breath test.

A person commits an offence by refusing to:

  • Submit to a preliminary breath test when required to do so; or
  • Undergo a drug assessment when required to do so; or
  • Stop and remain stopped at a preliminary testing station; or
  • Obey the instructions of a police officer before, during, or after the administration of a preliminary breath test.

In addition, if a drug assessment leads to a reasonable belief that a driver is impaired by the consumption of drugs, it is an offence to refuse to submit a blood sample drawn by a registered medical practitioner or approved health professional.

A refusal can occur when the driver repeatedly attempts but fails to provide a sufficient breath sample. For instance, blowing weakly into the breath testing device so that the device cannot collect an adequate breath sample can be regarded as a refusal. If you made a good faith effort to provide an adequate breath sample but were unable to do so because of asthma or some other medical condition, ask a lawyer in your area whether you might have a defence to the refusal charge.

8. What is the penalty for an alcohol-related driving offence?

Penalties vary from state to state. As a general rule, those penalties have grown harsher over time. That trend is likely to continue.

Penalties depend upon the specific offence that results in a conviction. If the offence involves a PCA, the test result is an important factor in determining the penalty. Penalties tend to be harshest when a BAC exceeds 0.15 or when the charge is impaired driving. Penalties are also more severe for repeat offenders and for drivers who cause property damage or personal injury while committing a drink driving offence.

Potential penalties include:

  • Fines
  • Demerit points
  • Drivers licence suspension or cancellation
  • Vehicle impoundment or immobilization
  • Installation of ignition interlocks on vehicles you drive
  • Community service
  • Deferred sentencing with required participation in a treatment program
  • Participation in a court diversion (educational) program
  • Incarceration

If you are charged with a driving offence that is alcohol-related, consult a lawyer in your area to learn about the potential penalties you face and your options for defending against the charge.

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