What is drink driving?
Drink driving is the term used to describe an offence of driving while having alcohol in your system.
You will be charged with drink driving if you drive when you have more alcohol in your system than you are legally allowed to have. In order to check how much alcohol you have in your system, the police may stop you and require you to undergo certain tests. These tests are known as the preliminary breath test and the breath/blood/urine test.
These tests result in a blood alcohol content reading or BAC reading, which shows how many grams of alcohol there are in 100ml of your blood.
The BAC reading is used to support the charge against you. There are a number of different drink driving charges under the Road Traffic Act 1974 (WA) that are grouped according to the BAC reading. They are:
- excess 0.00 BAC (reading of up to less than 0.02 BAC)
- excess 0.02 BAC (reading of 0.02 BAC up to less than 0.05 BAC)
- excess 0.05 BAC (reading of 0.05 BAC up to less than 0.08 BAC)
- excess 0.08 BAC (reading of 0.08 BAC up to less than 0.15 BAC), and
- driving under the influence (reading of 0.15 BAC or more).
The precise charge brought against you will depend on the level of alcohol shown to be in your system at the time of driving, in other words, your BAC reading at the time of driving.
The higher the BAC reading, the higher the penalty for the offence. When the amount reaches 0.15 BAC or more, it becomes the most serious drink driving offence of driving under the influence or DUI, which can result in imprisonment. If you are charged with this offence, you should get legal advice.
Offences associated with drink driving
Offences associated with drink driving include offences of refusing a preliminary test and refusing to undergo a breath/blood/urine test for alcohol analysis.
What is drug driving?
Drug driving is the term used to describe offences of driving with an illicit drug in your system or driving while impaired by drugs (whether prescribed or illicit).
If you are found to have any amount of an illicit drug in your system at the time of driving, you are committing an offence. It does not matter how much of the drug is in your system.
Driving while impaired by drugs is a different offence. You may be charged with this if you complete a driver assessment test which shows that you are impaired by a drug and therefore cannot drive safely. This offence can apply to illicit or prescribed medication.
If you have been taking prescribed medication and are charged with an offence of driving while impaired by drugs, in certain circumstances you may have a defence to the charge. In this case you should get legal advice.
Offences associated with drug driving
Offences associated with drug driving includes refusing to comply with a driver assessment or refusing a breath, blood or urine test for drug analysis.
Do I have to do a preliminary breath test for alcohol?
A preliminary breath test is the test that is first conducted by police, usually at the side of the road, to see if you have any alcohol in your system.
If you are the driver of a vehicle and a police officer asks you to provide a sample of breath for a preliminary breath test, then you must do so. It is an offence to refuse to comply with this request.
A police officer can also require you to provide a sample of breath if they reasonably believe you were driving the vehicle earlier, even if you are not driving it at the time the vehicle is stopped. Once again it is an offence to refuse to comply with this request.
Do I have to do a breath, blood or urine test for alcohol?
If the preliminary test shows that you have an unlawful amount of alcohol in your system, or you refuse to do or cannot do a preliminary test, the police can require you to provide a sample of breath, blood or urine, for analysis.
Usually, this test is conducted at a police station. Samples of blood or urine must be taken by a nurse or medical practitioner.
You are not required to provide a sample of breath, blood or urine if it is four hours or more after you drove.
It is otherwise an offence to refuse to provide a sample of breath, blood or urine.
Do I have to do a driver assessment test or do a blood or urine test for drugs?
If you are the driver of a vehicle and the police ask you to either do a driver assessment test to see if you are impaired by drugs, or ask you to do a saliva or blood test to test for the presence of illicit drugs in your system, you must comply with the request. It is an offence to refuse to comply with the request.
What should I do if I am charged with drink or drug driving?
The first thing to do is to consider if you are guilty or not guilty of the offence. If you are not sure, you should get legal advice. Some of the issues that are relevant to whether you are guilty of the offence include:
- whether you were the driver of the vehicle, and
- whether you were driving on a road or other place to which the public has access.
Click here for more information about Dealing with traffic charges.
If you are not sure if you have been charged with the correct drink driving offence, you may wish to check the information under Blood alcohol content limits.
If you are facing a drink or drug driving offence and at the same time you are facing another driving offence, such as careless driving or dangerous driving, your situation is more serious. In some circumstances there may be a risk of imprisonment. If you are in this situation, you should get legal advice before you enter a plea.
What penalties can apply if I am convicted?
If you are convicted of a drink or drug driving offence the penalty that will usually apply is a fine and a period of licence disqualification.
Licence disqualification means that you are not allowed to drive for a period of time specified by the court. Disqualification is sometimes referred to as suspension.
For some serious drink driving offences, imprisonment is also an option.
Can I ask the court not to fine me and not to disqualify me from driving?
For most drink or drug driving offences, the minimum penalty is fixed by law, so the court must impose at least the minimum fine and at least the minimum period of disqualification for the particular offence. The court can impose more than the minimum if it thinks it is appropriate in the circumstances, but can never impose less than the minimum.
Is there any drink or drug driving offence I won’t be disqualified for?
While most drink or drug driving offences will result in you being automatically disqualified from driving, there are a few slightly less serious offences that do not result in automatic disqualification. They are:
- any offence of excess 0.00 BAC (if you are subject to that limit)
- first offence of excess 0.05 BAC – disqualification is not automatic, but it may be imposed if the court considers it is appropriate, and
- first offence of driving with illicit drugs in your system, provided that you were not found to be impaired by the drug at the time of driving.
What level of fine or length of disqualification can be imposed?
For information about the minimum and maximum penalties that may be imposed for different drink or drug driving offences, see Legal Aid WA's Traffic offences information sheet.
If you want to know what penalty you are likely to receive in your particular situation, you should seek legal advice.
Will my licence be cancelled if I am a P-plater?
Yes, if you are a provisional licence holder (P-plater) and you are disqualified from driving for an offence of drink or drug driving, your licence will be automatically cancelled.
If your licence is cancelled, you cannot drive until you have passed your test again.
If I am fined will I be given time to pay?
The court will always give you 28 days to pay any fine imposed.
If you need longer than 28 days to pay you should go to the Registry at your nearest Magistrates Court before the 28 days runs out, to enter into a 'time to pay' arrange to pay the fine by instalments.
For more information see Fines.
What should I do if I think I will be disqualified from driving?
If you think you will be convicted of an offence that will result in disqualification, you should be prepared to tell the court the impact the disqualification will have on you. For example, whether you rely on driving to get to work. If the impact is significant then the court may consider it appropriate to impose no more than the minimum length of disqualification for that offence.
Also, if you think you will be disqualified when you go to court, make alternative transport arrangements to get back from court, as you will not be allowed to drive from the moment the court imposes the disqualification on you.
When can I drive again?
If you have been disqualified from driving or you have had your licence cancelled and you want to know when you can drive again, including whether you can apply for an extraordinary driver’s licence, see Disqualification or cancellation of licence.
Do I need to be represented by a lawyer in court?
If you are pleading guilty to a drink or drug driving offence you can choose to be represented by your own lawyer, a Legal Aid WA duty lawyer if there is one available, or you can choose to represent yourself.
If you are pleading not guilty, a Legal Aid WA duty lawyer cannot represent you at your trial.
Generally, it will be appropriate for you to represent yourself if the offence you are facing will not result in a serious penalty or serious consequences for you. This will usually depend on the seriousness of the offence and your driving history.
If the offence or consequences are more serious, you should seek legal advice before deciding whether to represent yourself. If there is a risk of imprisonment, or disqualification of your licence will result in the loss of your job or another serious consequence, it is better if you are represented.
Where can I get legal advice?
If you need legal advice about your charge, your plea or about the penalty you are likely to get, you can seek advice from your own private lawyer, or you may be able to speak to a Legal Aid WA duty lawyer on the morning of your court appearance, if there is one available.
Click here for more information about Legal Aid WA's Duty Lawyer Service.
If you are seeking advice from your own lawyer you should do so well before your court appearance so you have a chance to act on any advice you may be given.
Last reviewed: 03/09/2015