Driving While Exceeding the Prescribed Concentration of Alcohol (Section 49.1.b)

Driving While Exceeding the Prescribed Concentration of Alcohol (Section 49.1.b)

In Victoria, Driving While Exceeding the Prescribed Concentration of Alcohol is found in section 49(1)(B) of the Road Safety Act 1986. It is a criminal offence that is committed by a person who was found to have driven or have been in charge of a motor vehicle whilst having a prescribed concentration of alcohol, or more than the prescribed concentration of alcohol, in their blood or breath.

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’ Courts of VictoriaSentencing Statistics Pie Chart for Drive or In Charge of Vehicle While Exceeding Prescribed Concentration of Alcohol in the Magistrates' Courts
  • 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.

  • 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 12 penalty units.

For a second offence the maximum penalty is 6 months imprisonment and/or a fine of 60 penalty units if the concentration of alcohol is less than 0.05ml. 12 months imprisonment and/or a fine of 120 penalty units 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 if the concentration of alcohol was less than 0.05ml. 18 months imprisonment and /or a fine of 180 penalty units 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 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.
 
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.