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The offence of driving under the influence of an intoxicating liquor or drug (DUI) is different from other drink driving charges. It does not require evidence from breath analysis to prove that the person’s blood alcohol content was above the legal limit. Rather, it requires evidence that the person’s driving was affected by the presence of alcohol in their system.

DUI or drink driving?

When a person is charged with drink driving, they are charged based on their BAC (Blood Alcohol Concentration) reading (ie low range, medium range, or high range drink driving). A person can be found guilty of these offences based on evidence that they were driving and that their blood alcohol content was above the legal limit, even if there is no evidence that their driving was actually affected by their intoxication.

Conversely, a person charged with DUI will be found guilty if there is sufficient evidence to conclude that their driving was affected by their intoxication. This is the case even if their blood alcohol content was not above the legal limit or if there is no evidence of what their blood alcohol content was.


DUI is an offence under section 24 of the Road Transport (Alcohol and Drugs) Act 1977.  The maximum penalty for this offence is a fine of 30 penalty units ($4800).

What needs to be proven for a DUI charge to succeed?

To find a person guilty of the offence of DUI, the police must prove beyond a reasonable doubt that the person was:

  1. Driving a motor vehicle on a road or road related area;
  2. Under the influence of an intoxicating liquor or drug; and
  3. The influence of the liquor or drug was such as to render them incapable of having proper control of the vehicle.

Evidence in DUI matters

Evidence for a DUI charge is generally in the form of observations by police who attended the scene, for example slurred speech, smelling of liquor, unsteadiness on their feet or a car accident. This is often difficult and is open to subjective reasoning by the attending officer because there is no objective or scientific way of proving whether or not a person is under the influence of alcohol.

The maximum penalty for this charge depends on whether a person is a first or a repeat offender. In either case, the starting point at sentencing would be for the court to record a conviction, impose a fine and disqualify the person’s  licence for three years, for a first offence, and five years for a second offence.


It is a valid defence to a charge of DUI if the accused can establish that they were in a vehicle on a road or road related area but had not started the engine of the vehicle or attempted to put the vehicle into motion, and that the person did not intend to drive the vehicle while under the influence of liquor or drugs.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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