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  • Writer's pictureShaun Pascoe

Case Study: Exceed Prescribed Concentration of Alcohol Whilst Driving

Updated: Oct 11, 2023

Table of Contents


Date & Location

July 20, inner north-western suburbs.


Facts and Penalties

Our client was charged was intercepted by police a short distance from his home driving his vehicle. What attracted the police attention to our client’s vehicle was the absence of activated headlights.

Once intercepted our client was directed by police to provide a breath test roadside, a subsequent evidentiary breath test undertaken at the police station returned a blood alcohol concentration (bac) of 0.139%.

Our client gave the explanation that he had consumed alcohol earlier in the night, remembered that he had left his car in a loading zone, and was in the process of moving his car when intercepted.

Because our client had an earlier driving offence (2012) and because of the high bac reading (blood alcohol concentration) our client received an immediate suspension notice (of his driver's license).

Our client was later charged under section 49(1)(b) and s. 49(1)(f) of the Road Safety Act (The Act) with the offence of exceeding the prescribed concentration of alcohol whilst driving a motor vehicle (both are alternative offences), and required to attend the Melbourne Magistrates' Court in January 2021.

Under the Road Safety Act 1986 (Vic) the prescribed concentration of alcohol is less than 0.05% for full license holders.

The penalty for a first offence under either s. 49(1)(b) or 49(1)(f) is 20 penalty units, and for a second offence where the bac is less than 0.15%, a maximum of 60 penalty units or 6 months imprisonment (as per the date when our client’s case was heard).

The penalty unit is set by parliament each year and at the time our client’s case was heard a penalty unit was $181.74.

How Case Resolved

After taking full instructions from our client and after consideration of the prosecution brief it was apparent that our client did not have a viable defence to the charges.

He was so advised, and he instructed our office that he would enter a plea of guilty and the case was set down for a guilty plea hearing.

Our client had provided very fulsome instructions and materials relating to a chronic health condition, and other factors which had in part explained his poor judgement on the evening in question.

A medical report was obtained from his treating psychologist, along with other medical reports which set out in detail matters pertaining to his physical health.

Character references were also provided to highlight not only his good character but also his employment history.

Sentencing Outcome

Our client entered a plea of guilty to Exceed prescribed concentration of alcohol whilst driving under section 49(1)(f) and the alternative offence (s. 49(1)(b) was withdrawn.

Our client also pleaded guilty to driving without having his headlights on.

After hearing submissions, the Court imposed a fine of $900 (aggregate fine for both offences) and imposed the statutory minimum license disqualification of 26 months backdated to the date of the immediate suspension notice.

If you are facing any drink driving offence, including Exceed Prescribed Concentration of Alcohol contact us to receive expert advice.

Shaun Pascoe is an Accredited Criminal Law Specialist, and his firm Pascoe Criminal Law has been formally recognised as a recommended criminal and traffic defence lawyer by Doyles Guide.


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