Author: Ophelia Hollway
Practice area: Drink Driving Offences
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 provides a breath sample within three hours after driving or being in charge of a motor vehicle, and that sample shows the prescribed concentration of alcohol or more. It is charged under section 49(1)(f) of the Road Safety Act 1986 (Vic).
Key points
- Driving or control: The accused must have driven or been in charge of a motor vehicle.
- Timing of test: A breath sample must be provided within three hours after driving or being in charge.
- Court jurisdiction: The charge is heard in the Magistrates’ Court.
The maximum penalty for Driving While Exceeding the Prescribed Concentration of Alcohol is up to 18 months’ imprisonment and/or 180 penalty units ($37,638.00 — as at 2026–27) in case of a subsequent offence where the alcohol concentration is 0.15 or more.
Common defences may include challenges to the breath test process, whether alcohol was consumed after driving, or whether the offence can be proven beyond reasonable doubt.
Have you been accused of Driving While Exceeding the Prescribed Concentration of Alcohol?
Police Interview
Did you know that when dealing with police you can ask to speak to a lawyer at any time, including when you are intercepted by police when driving for a road side field interview? The benefit of contacting a lawyer before speaking with the police is that you can receive advice on if it is in your best interests to answer the questions or say ‘no comment’.
If police wish to interview you in relation to the charge of Drink Driving, you should speak to one of our expert traffic lawyers as soon as possible prior to speaking to police to ensure that you receive the best advice about how to proceed. Interviews for driving matters are not normally audio visually recorded and you do not want to be in a situation where you dispute a police officer’s interpretation of your responses.
Pleading Not Guilty
If you deny a charge of Driving While Exceeding the Prescribed Concentration of Alcohol, you may take your matter to a contested hearing. Our lawyers have enormous experience in running matters to contest and know how to prepare a defence strategy.
In a case of Driving While Exceeding the Prescribed Concentration of Alcohol, there is normally a very particular reason why a person disputes this allegation. These include:
- The alcohol device was not working properly,
- Alcohol was consumed after driving,
- You were not in control of a motor vehicle.
Whatever your reason for contesting a charge of Driving While Exceeding the Prescribed Concentration of Alcohol, one of our lawyers can listen to your instructions, review the brief of evidence and advice you of the best strategy to succeed.
Pleading Guilty
Like most other driving offences, Driving While Exceeding the Prescribed Concentration of Alcohol has prescribed minimum penalties. Before pleading guilty to this charge, our lawyers will advise you of all the mandatory penalties so you know exactly what you are facing.
One of our expert lawyers will provide you advice about necessary steps to take before your matter goes to Court, and make detailed submissions to the Court on your behalf about why your licence is important to you.
Sentencing
Sentencing in the Magistrates’ Courts of Victoria
In the Magistrates’ Court, 83.3% of charges for exceeding the prescribed concentration of alcohol in a breath test within three hours of driving resulted in a fine. Adjourned undertakings accounted for 9.7% of outcomes, while 5.7% received a community correction order. Imprisonment was imposed in 1% of cases, and 0.4% were discharged or dismissed. These figures show that the offence is most commonly dealt with by way of a financial penalty, although more serious outcomes can follow depending on prior history, the reading involved, and the overall circumstances of the matter.
Which court will the case be heard in?
This offence is the sort of charge regularly heard in the Magistrates’ Court.
Examples of Driving While Exceeding the Prescribed Concentration of Alcohol (Section 49.1.F)
- You go out with your friends and have a few beers, and decide to drive home. Police observe you speeding on your way home. They run a check on your licence plates and obtain your address. They turn up at your house within three hours and ask you to blow into a breath analysing instrument.
Legislation
This is legislation that comes from section 49(1)(f) of the Road Safety Act 1986.
Elements of the offence
In essence, to prove this charge the Police must show that:
- The accused drove or was in charge of a motor vehicle, and
- The accused gave a sample of breath within 3 hours of that driving or being in charge of the motor vehicle, and
- The result showed that the accused had the prescribed concentration of alcohol or more present in the accused’s breath, and
- The result was not due solely to the consumption of alcohol after the driving or being in control of the vehicle.
Defences
Defences to this can be a factual dispute or that the breath-analysing instrument used was not in proper working order or was not properly operated. The concept of beyond reasonable doubt as well as charges being statute barred may also be used in court depending on the circumstance surrounding the case.
Questions in cases like this
- Did you start drinking after you drove the car?
- Was the breath-analysing instrument working properly?
- Was your breath tested more than three hours after you drove the car?
- Were you the one actually driving, or were you just a passenger?
Maximum penalty for section 49(1)(f) of the Road Safety Act 1986
The maximum penalty for Driving While Exceeding the Prescribed Concentration of Alcohol (s49(1)(f) of the Road Safety Act 1986) depends on the number of offences committed and the concentration of the alcohol in the person’s blood.
First offence: 20 penalty units ($4,182.00 — as at 2026–27).
Second offence: 6 months prison and/or 60 penalty units ($12,546.00 — as at 2026–27) if the concentration of alcohol is less than 0.15 grams per 100 millilitres of blood; or in the person’s breath was less than 0.15 grams per 210 litres of exhaled air as the case requires. 12 months and/or 120 penalty units ($25,092.00 — as at 2026–27) if the concentration of alcohol in the person’s blood was 0x15 grams or more per 100 millilitres of blood; or in the person’s breath was 0.15 grams or more per 210 litres of exhaled air as the case requires.
Subsequent offence: 12 months and/or 120 penalty units ($25,092.00 — as at 2026–27) if the concentration of alcohol in the person’s blood was less than 0.15 grams per 100 millilitres of blood; or in the person’s breath was less than 0.15 grams per 210 litres of exhaled air as the case requires. 18 months/180 penalty units ($37,638.00 — as at 2026–27) if the concentration of alcohol in the person’s blood was 0.15 grams or more per 100 millilitres of blood; or in the person’s breath was 0.15 grams or more per 210 litres of exhaled air as the case requires.
New regulations that came into effect from 31 January 2018 mean that Victorian offenders will face Victorian driving penalties should they be caught interstate.
Other important resources
- SAC Statistics – Road Safety Act 1986 (Vic) : s 49(1)(f) – exceed prescribed concentration within 3 hours after driving – breath analysis
- Drink Driving Lawyers: Driving while exceeding the prescribed concentration of alcohol (Drunk Driving)
- FindLaw: Driving While Exceeding the Prescribed Concentration of Alcohol (section 49.1.f)
- An inconvenient truth: Legal implications of errors in breath alcohol analysis arising from statistical uncertainty
