Author: Ophelia Hollway
Practice area: Drink Driving
Ophelia is a Senior Associate and LIV Accredited Criminal Law Specialist at Doogue + George, appearing regularly as a solicitor advocate across Victorian courts and having practised exclusively in criminal law since admission. Her depth of experience in this area means clients receive accurate, considered advice.
View full profile →Ophelia authored this content and last revised it for accuracy on 5th August 2026.
What is the offence of Driving While Exceeding the Prescribed Concentration of Alcohol?
This offence applies where a person drives or is in charge of a motor vehicle while having the prescribed concentration of alcohol, or more, in their blood or breath. It is prosecuted under section 49(1)(b) of the Road Safety Act 1986 (Vic).
Key points
- The prosecution must prove driving or being in charge of a vehicle and an alcohol reading at or above the prescribed level.
- The offence is established by blood or breath alcohol analysis.
- This charge is regularly heard in the Magistrates’ Court.
The maximum penalty for Driving While Exceeding the Prescribed Concentration of Alcohol is:
- First offence: fine of up to 20 penalty units ($4,182.00 — as at 2026–27).
- Second offence: up to 6 months’ imprisonment and/or a fine of up to 60 penalty units ($12,546.00 — as at 2026–27) (lower-range readings), or up to 12 months’ imprisonment and/or 120 penalty units ($25,092.00 — as at 2026–27) (higher-range readings).
- Subsequent offence: up to 12 months’ imprisonment and/or 120 penalty units ($25,092.00 — as at 2026–27) (lower-range readings), or up to 18 months’ imprisonment and/or 180 penalty units ($37,638.00 — as at 2026–27) (higher-range readings).
Common defences may include disputes about whether the accused was driving, challenges to the accuracy of the alcohol reading, issues about what was consumed, and technical issues with police procedures or testing equipment.
Have you been accused of Driving While Exceeding the Prescribed Concentration of Alcohol? This charge attracts a mandatory disqualification of your driver’s licence depending on the amount of alcohol alleged to be in your system. A Magistrate does not have discretion to go under the mandatory minimum, but they do have discretion to disqualify your driver’s licence for longer than the mandatory minimum.
Police Interview
The Police will conduct an interview where they will ask you standard questions about how much alcohol you consumed that day if they think you are .05 or above.
The Prosecution will rely on the evidence of your reading and your responses to the interview questions as evidence in Court to support their case against you.
Pleading Not Guilty
If you decide to contest a charge of Driving While Exceeding the Prescribed Concentration of Alcohol, there will be material that needs to be subpoenaed from Victoria Police. Possible defences include:
- a factual dispute that you were driving the car
- a dispute as to the accuracy of the evidentiary reading
- a dispute as to what you consumed that day and if it could be mistaken for alcohol
Our defence lawyers know exactly what to look for when contesting a charge of Driving While Exceeding the Prescribed Concentration of Alcohol and can navigate you through the complex Court process.
Pleading Guilty
Before deciding to plead guilty to a charge of Driving While Exceeding the Prescribed Concentration of Alcohol, one of our experienced defence lawyers will explain the penalties to you so you know exactly what you are facing. It is important to understand that in addition to time off the road, there are also interlock conditions that apply to certain readings.
Depending on the circumstances of your case, a Magistrate might exercise their discretion to interfere with your driver’s licence for a period longer than the prescribed minimum. Our lawyers will look at the facts of your case and advise you of courses you should complete before your Plea Hearing to prevent this from happening.
Sentencing
Sentencing in the Magistrates’ Court of Victoria
Source: Sentencing Advisory Council of Victoria (SACStat), Road Safety Act 1986 (Vic) s 49(1)(b) — 281 charges across 280 cases, Magistrates’ Court, 1 July 2020 – 30 June 2023.
| Sentencing outcome | % |
|---|---|
| Fine | 78.6% |
| Community Correction Order | 11.0% |
| Adjourned Undertaking | 6.4% |
| Imprisonment | 3.2% |
| Discharge/Dismissal | 0.7% |
These figures show that although custody is possible, the offence is most commonly dealt with by way of a financial penalty. The outcome will depend on factors such as prior driving history, the reading involved, and the surrounding circumstances.
Examples of Driving While Exceeding the Prescribed Concentration of Alcohol (Section 49.1.b)
- A man meets his friend at the pub after work, he doesn’t have any dinner and has 2 pints of beer in 2 hours and then drives to his friend’s house.
- A woman goes to her friend’s house for a quick visit, she has just been to the gym and doesn’t eat anything. She has 2 glasses of wine in one hour and drives home.
- A man goes to a restaurant and has a 3 course meal. He drinks half a bottle of wine and then drives home.
Defences
- This is a difficult charge to defend unless you are sure that you did not drink any alcohol and there must have been a mistake in the sample. Or if you were not driving the car.
- This is an offence that has highly technical defences based on the conduct of the Police and the testing equipment.
There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.
Questions that are asked in cases like this:
- Were you driving?
- How much did you drink before driving?
Maximum penalty and court that deals with this charge
The maximum penalty for Driving While Exceeding the Prescribed Concentration of Alcohol (Section 49.1.b) (s49(1)(B) of the Road Safety Act 1986) depends on the concentration of alcohol in your blood and if this is your first offence or a subsequent offence.
For a first offence the maximum penalty is a fine of 20 penalty units ($4,182.00 — as at 2026–27).
For a second offence the maximum penalty is 6 months imprisonment and/or a fine of 60 penalty units ($12,546.00 — as at 2026–27) if the concentration of alcohol is less than 0.05ml. 12 months imprisonment and/or a fine of 120 penalty units ($25,092.00 — as at 2026–27) if the concentration of alcohol was more than 0.15ml.
For a subsequent offence the maximum penalty is 12 months imprisonment and/or a fine of 120 penalty units ($25,092.00 — as at 2026–27) if the concentration of alcohol was less than 0.05ml. 18 months imprisonment and /or a fine of 180 penalty units ($37,638.00 — as at 2026–27) if the concentration of alcohol was more than 0.15ml.
New regulations that came into effect from 31 January 2018 mean that Victorian offenders will face Victorian driving penalties should they be caught interstate.
The offence of drink driving is the sort of charge regularly heard in the Magistrates’ Court.
What can you be sentenced to for this charge?
You are likely to lose your license and receive a fine. If you have been found guilty of this offence before you could also face imprisonment for some months. There are many reasons what people drink drive and explaining the specifics of your circumstances is how you may get a lesser penalty.
What is the legal definition of Driving While Exceeding the Prescribed Concentration of Alcohol (Section 49.1.B)?
Driving while being over the legal limit of alcohol present in the blood or breath.
Were you drink driving?
The Law
The section that covers this offence is section 49(1)(B) of the Road Safety Act 1986.
Other Important Resources
- Drink Driving Lawyers: Exceed Prescribed Concentration of Alcohol
- CriminalLawyers: Drink Driving Exceed PCA Charge
