Road Safety (Alcohol and Drugs) Act 1970 – SECT 6

6. Driving with excessive concentration of breath or blood alcohol

(1) Any person who drives a motor vehicle while alcohol is present in his or her breath or blood in a concentration greater than the prescribed concentration is guilty of an offence.

(2) A person to whom, by virtue of subsection (3) or (4), this subsection applies who drives a motor vehicle while alcohol is present in his body is guilty of an offence.

(3) Subsection (2) applies to a person –

(a) who does not hold an Australian driver licence, foreign driver licence or international driving permit; or

(ab) who holds a learner licence, a provisional licence or an equivalent licence issued under the law of another Australian jurisdiction; or

(b) who is driving a prescribed vehicle; or

(c) who has, after the commencement of the Road Safety (Alcohol and Drugs) Amendment Act 1991 been convicted of–

(i) the crime of manslaughter arising out of the driving of a motor vehicle; or

(ii) the crime of causing death by dangerous driving– if, as a result of the course of conduct giving rise to that crime, that person was also convicted of an offence under section 4 of this Act or this section;

(d) who is driving under the authority of a restricted driver licence issued for a period of disqualification from driving imposed for an offence against this Act.

(3A) For the purposes of subsection (3) a person who does not hold an Australian driver licence is to be taken to hold such a licence if the person satisfies the court that he or she would, but for an unintentional failure to comply with an administrative requirement, be the holder of such a licence.

(4) Subsection (2) applies to a person if –

(a) the person has been convicted within any 10 year period of 3 or more offences under this Act arising from at least 3 separate incidents; and

(b) at least one of those offences was committed on or after 12 December 1991; and

(c) either –

(i) less than 10 years has passed since the last of those convictions was recorded; or

(ii) 10 or more years have passed since the last of those convictions was recorded and the person has not provided to the Registrar of Motor Vehicles the certificate of a registered medical practitioner or a prescribed person certifying that the person is not alcohol-dependent.

A court that convicts a person of this offence must –

(a) impose a fine of an amount not less than 2 penalty units or more than 10 penalty units, or

(b) impose a term of imprisonment for a term not exceeding 3 months; or

(c) impose both that fine and that term of imprisonment; and  

(d) must, in addition, disqualify the person from driving for a minimum of 3 months and maximum of 12 months        

(e) When a court imposes a disqualification from driving under this section, it must suspend or cancel any Australian driver licence held by the person against whom the disqualification is imposed as required by section 17 of the Vehicle and Traffic Act 1999.

(a) The accused was driving the motor vehicle.

(b) The person had a concentration of alcohol in his or her breath or blood greater than the prescribed concentration

(c) The person had any amount of alcohol present in his body if he/she is a person listed under section (3)(4) 

(a) Factual dispute.

(b) The breath analysing instrument used was not in proper working order or properly operated.

(c) Duress

(d) Identification dispute

(e) Lack of intent

(f) Mental impairment

(g) Necessity

Magistrates Court