Drink & Drug Driving – The Penalties

The Easter long weekend has just concluded, and the ANZAC Day long weekend is almost upon us. With all the celebrations around there is usually an excess consumption of alcohol and for some drug use as well. If you have been charged with a Drink or Drug Driving offence and want to know briefly what the penalties are then continue reading as we provide a snapshot of the current Drink & Drug Driving Penalties.


There are three primary offences we will focus in this blog:

1. Driving with a Prescribed Concentration of Alcohol (Section 47B of the Road Traffic Act);

2. Driving Under the Influence (Section 47 of the Road Traffic Act)

3. Drug Driving (47BA of the Road Traffic Act)


Driving with a Prescribed Concentration of Alcohol (PCA)

Arguably this is the most common of the Drink Driving charges. Section 47B of the Road Traffic Act makes it an offence for a person to operate a vehicle while there is present in their blood the prescribed concentration of alcohol. The prescribed concentration of alcohol in the case of most drivers is .05 grams or more of alcohol in 100 milliliters of blood. Keep in mind this is not the case for persons not authorised under the Motor Vehicles Act 1959 where there must be no alcohol and is also not the case for drivers of “prescribed vehicles” such as trucks of a particular size, busses, and other vehicles.


The penalties consist of a fine and licence disqualification. The length of the disqualification and amount of the fine are dependent on the concentration of alcohol and whether it is a first or subsequent offence. The minimum licence disqualifications are as follows:

Category 1 (.05 - .08)

Category 2 (.08 - .15)

Category 3 (.15 +)

First Offence

3 months

6 months

12 months

Second Offence

6 months

12 months

3 years

Third Offence

9 months

2 years

3 years

Subsequent Offence

12 month

2 years

3 years

In addition, 4 to 6 demerit points will also be imposed depending on the category of the offence. Should your total demerit points come to a total of 12 of more, then you will be liable for a further disqualification period which starts at the conclusion of the Court imposed disqualification.


Finally, if you are convicted of a category 2 (or higher) offence that is a subsequent offence, any subsequent licence granted will be subject to a mandatory alcohol interlock scheme for a minimum of three years.


Driving Under the Influence

Section 47 of the Road Traffic Act makes it an offence to drive a vehicle or attempt to put a vehicle in motion while so much under the influence of an intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle.


In this section, the amount of alcohol consumed, or the type of drug consumed is secondary and does not necessarily need to be proven. What is important is the effect which the drug (including legal prescription medication) or alcohol is on the person driving the motor vehicle.


The penalty for this offending is a fine or imprisonment. Where a motor vehicle was used in the commission of the offence, there is also a minimum licence disqualification of 12 months for the first offence and three years for subsequent offences. Imprisonment is generally reserved for the worst offending and the degree of intoxication and manner of driving will be considered when providing a penalty.


In addition, 6 demerit points will also be imposed. Should your total demerit points come to a total of 12 of more, then you will be liable for a further disqualification period which starts at the conclusion of the Court imposed disqualification.


Drug Driving

Section 47BA of the Road Traffic Act makes it an offence for a person to either drive a motor vehicle or attempt to drive a motor vehicle while a prescribed drug is present in the persons oral fluid or blood. A prescribed drug under the Regulations makes the following a prescribed drug:

a) Delta-9-tetrahydrocannabinol (THC);

b) Methylamphetamine;

c) 3, 4-methylenedioxymethamphetamine (MDMA)

There is no requirement under the legislation for a particular level of the drug to be in a person’s system, just that the drug is present. There is no requirement to prove that the persons driving was impaired by the drug.


The offence attracts a fine of between $900.00 and $2,200.00 depending on whether the offence was a first, second or subsequent offence. In the case of a first offence, a person cannot be prosecuted unless they have been given an expiation notice and an opportunity to expiate the offence.


Upon conviction, there is an imposition of a mandatory licence disqualification of 6 months to a minimum of 2 years depending on whether it is the persons first, second or subsequent offence. In addition, an offence against Section 47BA attract 4 demerit points. Should your total demerit points come to a total of 12 of more, then you will be liable for a further disqualification period which starts at the conclusion of the Court imposed disqualification.


Of course, there are many nuances in this legislation and reasons for seeking reductions in the penalty in certain circumstances as well as some very technical defences to the offending. It is advisable to obtain legal advice prior to pleading guilty to see if there are options for you.

In addition to the above penalties the effects can cause difficulties at home with driving spouses or children to and from events, difficulty getting to work or even losing a job due to the inability to drive from site to site therefore there is more to lose than just your licence.


Because of the technicalities and high stake penalties we highly recommend seeking advice from an experienced traffic lawyer to provide to you specific advice about your situation. Even if you intend on pleading guilty having a solicitor on your side to assist in persuading the Court to sentence you to the statutory minimums is important. Contact us on (08) 7084 3060 to have an obligation free discussion about your drink or drug driving offence.

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