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Saturday, 30 October 2010

Penalties for drink-driving

Magistrates don't usually go beyond the statutory minimum periods of licence disqualification for drink-driving offences on a plea of guilty. This makes penalties for drink-driving more consistent and predictable than other sentences, unless the circumstances are particularly serious. But it isn't easy to work out if, and for how long, a driver can expect to be be put off the road when their reading is low.

For offences under s 49(1)(b), (f) and (g) the minimum period of licence disqualification can be found in Schedule 1, at the back of the Road Safety Act 1986.

Here's a simplified version of that table:

MINIMUM DISQUALIFICATION PERIODS

















Reading First offence Subsequent offence
less than .07 6 months 12 months
.07 or more but less than .08 6 months 14 months
.08 or more but less than .09 6 months 16 months
.09 or more but less than .10 6 months 18 months
.10 or more but less than .11 10 months 20 months
.11 or more but less than .12 11 months 22 months
.12 or more but less than .13 12 months 24 months
.13 or more but less than .14 13 months 26 months
.14 or more but less than .15 14 months 28 months
.15 or more but less than .16 15 months 30 months
.16 or more but less than .17 16 months 32 months
.17 or more but less than .18 17 months 34 months
.18 or more but less than .19 18 months 36 months
.19 or more but less than .20 19 months 38 months
.20 or more but less than .21 20 months 40 months
.21 or more but less than .22 21 months 42 months
.22 or more but less than .23 22 months 44 months
.23 or more but less than .24 23 months 46 months
.24 or more24 months 48 months


For most drivers where an alcohol concentration reading has been recorded this table shows how long their minimum disqualification period will be.

The Interpretation Of Legislation Act 1984 s 44(6) states,

(6) In an Act or subordinate instrument, unless the contrary intention
expressly appears-

(a) a reference to midnight, in relation to a particular day, shall be construed as a reference to the point of time at which that day ends;

(b) a reference to a month shall be construed as a reference to a calendar month;

(c) a reference, without qualification, to a year shall be construed as a reference to a period of twelve months;

(d) a reference to a financial year shall be construed as a reference to the period of twelve months ending at midnight on 30 June; and

(e) a reference to a calendar year shall be construed as a reference to the period of twelve months ending at midnight on 31 December.

The table says that a reading below .07 is punishable by a minimum 6 months disqualification as a first offence and 12 months for a subsequent offence, but that's not always true. Sometimes it's necessary to look at s 50 for the exceptions to the general rule.



.00 Drivers

Under s 52 a driver must have an alcohol concentration of .00% when behind the wheel if they are any of the following:

    * not the holder of a full licence (except where the they have merely failed to renew an otherwise valid Victorian licence); * driving a large vehicle; * taxi drivers; * driving instructors; * a probationary driver; * a driver who, in the last 3 years, has had their licence restored to them after previously losing it for drink-driving.

(A driver who has had an alcohol interlock fitted to their car by order of the Court is required to remain .00% until the interlock is allowed to be taken off.)

If a first-time offender goes before the Court for a reading below .05% (because they are a 'P' plater, driving instructor, etc) the Court may disqualify them from obtaining a licence for up to 6 months, but isn't obliged to. If a first-time offender has a reading below .07 and is aged 26 or over the Court is not required to cancel a driver licence or permit or disqualify the offender from obtaining one unless it proceeds to conviction: s 50(1AB)(b).

If not a first-time offender, that discretion isn't available and the Court must disqualify the driver's licence in accordance with Schedule 1 unless the reading was below .05 and the Court decides not to proceed to conviction: s 50(1AB)(1). (This is available to drivers under 26).

Trying to persuade a magistrate not to award a conviction for a second drink-driving offence can sometimes be difficult, but is not impossible.

Demerit points

That's not the end of the story. Drink-driving with a low reading is a relevant offence carrying 10 demerit points. These are applied whether an infringement notice is paid or the charge is proved at Court (but only if the licence is not cancelled.)

Drivers who exceed their demerit points are served a notice by VicRoads. This notice requires a driver to accept the suspension of their licence, or to elect to drive for a year with only a single point, risking a loss of licence for a longer period. Section 25(3) of the Road Safety Act 1986 states,

(3) The Corporation must serve a notice (a demerit point option notice)
containing the prescribed particulars on-

(a) the holder of a full driver licence if he or she incurs 12 or more demerit points within any 3 year period; and

(b) the holder of a learner permit or probationary driver licence if he or she incurs-

(i) 5 or more demerit points within any 1 year period; or

(ii) 12 or more demerit points within any 3 year period.

Since probationary and learner drivers only have 5 demerit points to lose they will always receive a demerit point option notice. For drivers who have already taken their option a suspension of their licence is unavoidable.

3 comments:

middy said...

i don't see how its fair to discriminate against someone just based on being under 26. if it was a fact that chinese people are more dangerous drivers then would the goverment limit them to having one passenger and not allowed out at night? no way! there's nothing wrong IMO with restricions for people who have just got there licnences for 3 years discriminating against someone purely on age shouln't be allowed.

Melbourne Lawyer said...

There is a legitimate point *middy* makes. Discrimination against the young is the form of inequality that we do the least about because it is the one form of discrimination that everyone grows out of.

I can't be bothered looking it up but I wonder whether statistics would show that 25 y.o. drivers are significantly more dangerous drivers than 26 y.o. drivers, enough to deserve the extra punitive measures and restrictions placed on them. I doubt it.

Anonymous said...

An interesting point as a citizen. Most of the time, the legal fraternity look at the first part of the charge, but, not the second. With the charge of drink driving, it is written as 0.XXX grams of alcohol in either: 100 millilitres of blood OR 210 litres of exhaled air.

Now, is it just me that is sighting a problem with that above statement, or am I barking mad up the wrong tree? For the case to stand up in Court, the charge has to be proven as read, yes? In that case, if a blood test is taken, the laboratory assessment will prove the charge, so that is not a problem. However, take a closer look at the second one - OR 210 litres of exhaled air. Last time that I looked, it would not be beyond the realms of possibility to fit most individuals inside a 44 gallon (205 litre) drum and still have room to spare. A general practice Doctor has advised me that the human lung may hold up to 4 litres of air. So, on that ground, there is no way that 210 litres of exhaled air has been blown through the instrument in one exhaled breath.

Go and check the Pattern Approval at www.measurement.gov.au - In the Pattern Approval for Breath Analysis Instruments used for Evidentiary Purposes, there is a minimum and maximum flow rate for exhaled air which can be accepted for testing. If an individual is connected to the instrument, and exhales into it for 10 seconds, even at the maximum flow rate specified under the Pattern Approval, me thinks that the person exhaling into the instrument would be 'slightly' short of the 210 litres exhaled!

If the legislation was to read: In 0.210 litres / or 210 millilitres of exhaled air, there would be no problem from my perspective. However, this can be traced back to OIML, in France, where their Pattern Approval Recommendation (R) states the same as the Australian Pattern Approval. Question now needs to be asked: Who has not done "Due Diligence"?