This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

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.

Driving Under the Influence (DUI)


The offence of driving under the influence of an intoxicating liquor or drug (DUI) is different from a PCA drink driving charge as it does not require evidence from a breath analysis to prove the charge. A person can be found guilty of DUI purely on the basis that they were driving and their driving was affected by their intoxication by liquor of another drug.

What must be proven for DUI?

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

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

DUI or drink driving?

When a person is breath-tested while driving and records a BAC of above the legal limit, they are generally charged with a BAC drink driving offence, such as low-range drink driving, mid-range drink driving or high range drink driving. In these matters, for the person to be found guilty there must be evidence of what BAC they recorded.

Conversely, when a person is charged with DUI, no evidence is required of what their BAC was. Evidence must establish only that they were driving a motor vehicle and that their driving was impaired by their intoxication. A person can be found guilty of this offence even if their BAC was not above the legal limit or if there is no evidence of what their BAC was.

A person may be charged with DUI rather than another drink driving offence because there is no evidence of what their BAC was or because they were not over the limit but were nonetheless affected by alcohol. They may also be charged with DUI because they refused to supply a sample (in which case they could also be charge with refusing to supply a breath sample).

Evidence in a DUI matter

Evidence in a DUI matter is generally in the form of observations from police who attended the scene, for example slurred speech, smelling liquor, unsteadiness on their feet or a car accident.

It can be difficult to prove a person was intoxicated as it is open to subjective reasoning by the attending officer. There is no objective or scientific way of proving whether or not a person was under the influence of alcohol in the absence of a breath or urine analysis.

Penalties for DUI

DUI is an offence under section 49 of the Road Safety Act 1986.

The maximum penalty for DUI in Victoria depends on whether a person is a first or a repeat offender. The penalties are as set out in the table below.

OffenceMaximum FineMaximum jail time Minimum disqualification period
First25 penalty units3 months2 years
Second120 penalty units12 months4 years
Third or subsequent180 penalty units18 months4 years

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

WHERE TO NEXT?

In NSW, traffic offences are treated seriously. Therefore, it is important to get competent legal advice as early as possible, whether you have received a penalty notice, had your licence suspended or been charged with a serious offence. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.

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