Your Legal Rights and Obligations.
The Victorian Motor Traffic Law FAQ.

"Lawyers working with police and the community in educating drivers" - Former Deputy Commissioner Ray Shuey


Driving motor vehicles
Drink/Drug Driving
Car accidents

On public roads

Breath tests

Accidents generally

Right to Silence

Off road/private land

Blood tests

Personal injuries


Vehicle search/inspections

Drug impairment


In your home


Driving a motor vehicle on a highway:
  • A highway is legally defined as any place where the public may legally drive or park a motor vehicle, and it also includes all road reserves, nature strips, footpaths, cycle paths etc.
  • You must stop your vehicle if requested to do so by a police member, and you must obey any lawful direction given to you by a police member.
  • You must state your name and address when requested by a police member.
  • You must produce your driver's licence on request (if you do not have it on you, you have seven days to produce your full drivers licence to a police station)
  • You must be licenced to drive a motor vehicle on a highway. Penalty: a possible prison sentence if driving whilst disqualified or suspended.
  • The vast majority of traffic offences apply specifically to driving on a "highway".



Driving a motor vehicle on land which is not a highway (e.g. private property not open to the public).

  • All of the usual drink driving laws apply to driving on private property.
  • All of the motor vehicle accident laws apply to accidents on private property.
  • The majority of driving laws do not apply on private property (e.g. seat belts, speeding).
  • You are not obliged to state your name and address upon request unless you are found driving on a "highway".
  • You are not obliged to produce a drivers licence (or be licensed) unless you are found driving on a "highway".
  • A private road or driveway on a farm might still be a highway if it is open to the public for driving.
  • The offence of 'driving in a manner dangerous to the public' can be committed anywhere. Careless driving can be committed on a highway only.
  • Drink driving offences can be committed anywhere within the State, even in your locked garage.



Vehicle Searches and Inspections:

  • Under the Road Safety Act, if your vehicle is used on a highway you must allow a police member to inspect your vehicle if the member has reasonable grounds to suspect that the vehicle does not comply with legislation. The police may inspect the vehicle and engine identification numbers if they have reasonable cause to do so.
  • The police do not have a general power to search you or your vehicle without your consent.
  • If the police have reason to suspect you are carrying a radar detector, they may inspect your vehicle to look for and confiscate it. (Penalty for carrying one is about $3,000.00 max.)
  • The police can enter your motor vehicle by force in order to arrest you (with cause) or request a breath test or ask you for your licence.
  • See also Home searches



Breath tests:

  • You must stop your vehicle at a breath test queue if directed to do so (penalty is 2 years licence cancellation).
  • You must provide a sample of breath in the preliminary breath test device when requested (or face more than 2 years licence loss).
  • Any sample of breath provided must be provided in the manner requested by the police member or else the police member can require the driver to undergo a full evidentiary breath test (or possibly the police officer may charge you with refusing a preliminary breath test).
  • A preliminary breath test is done on a small handheld device with a digital display.
  • The police do not tell you the result of the preliminary breath test. It is an indicator test only.
  • If the result of a preliminary breath test shows alcohol is present, the police member may require you to attend the booze bus (or other place) for a full evidentiary breath test (penalty for refusing is 2 years minimum licence loss)
  • Legislation requires the police to wait a period of 15 minutes prior to requesting an evidentiary breath test. (This is to ensure that all alcohol in your mouth has evaporated).
  • During this waiting period the police will ask you a lot of questions from a pro-forma sheet and if you choose to respond your responses will be written down.
  • A driver is under no obligation to answer any of those questions other than to state his name and address. The questions are designed to assist the police to prosecute the driver. Answering any questions at all is likely to adversely affect the driver's chances of defending any charges that result from the test.
  • Being cooperative with the police is always a virtue, but there is absolutely nothing in the world that a driver can say to the police at this stage that will cause the police not to require a breath test, and nothing a driver can say will dissuade the police from charging him/her with an offence if the breath test result indicates he/she are in excess of the prescribed limit.
  • By now, your situation is about as bad as it can get. Remaining silent can not make it worse. Talking will not improve things. See Right to Silence.
  • The police will not "read you your rights" before asking you to undergo a breath test or before subjecting a driver to a pre-breath-test interrogation.
  • After a driver has undergone a pre-breath test interview and made all the self-incriminating admissions necessary to prove an offence, the police member will inform the driver of his blood alcohol reading. Only then will the police member inform the driver that he/she is under no obligation to say or do anything.
  • For all indictable offences the police must tape-record interviews with defendants. For motor traffic offences, there is no obligation to tape-record any conversation or interview and consequently every word a driver says will be used against him in court without any tape-recording to verify the conversation.
  • Police are trained to make notes of everything that happens. Drivers rarely make notes of what happens.
  • The police can ask you to remain with them to undergo the breath test for up to 3 hours after driving the motor vehicle.
  • The police can require you to provide samples of breath on more than one occasion if the first test did not produce any reading.
  • The police can take away your licence on the spot if your reading is 0.10% or more, or it is a second drink driving offence, or you are charged with refusing a police requirement, or the police claim you are drink driving when under 26 years old or on P plates.
  • After you have completed a breath test you have a right to ask for a blood test.
  • It is not an offence to be asleep in the drivers seat of your car while you are over the legal limit, even if the keys are in the ignition. However, it is an offence to start the motor of a motor vehicle while you are over the legal limit. If you are awoken by the police when sleeping in your vehicle, you do not have to submit to a breath test (unless you are then attempting to start or drive the vehicle, or you have been a driver when involved in an accident in the preceding 3 hours), and you are not obliged to accompany the police to any place. The police will usually ask what time you were last driving the car, as this information is required to prosecute a drink driving offence. The police can not prosecute a drink driving offence unless they have evidence of when the driver last drove the car.
  • The offence of drink driving is committed by a person who is over the limit and has an intention to start or drive a motor vehicle, even if the person did not even start the engine.
  • The police have 12 months from the date of a motor traffic offence to file a charge (or issue an infringement notice) in respect of it.
  • Generally, post-driving consumption of alcohol is not a defence and will not assist you to reduce the reading on a breath test. An exception is if you can prove that the reading is due solely to alcohol you consumed after you drove the car and your evidence of alcohol consumption is corroborated by another person. In practice that means you and a witness have to prove that you did not consume any alcohol prior to driving (i.e. you were 100% sober) and that you consumed alcohol after driving which explains with the reading.
  • The mandatory licence disqualification period (in months) for a first drink driving offence is generally equal to the reading divided by 0.01. i.e. 0.16% = 16 months. For second offences it is at least double.
  • If you are found guilty of drink driving with a reading in excess of 0.069%, you must lose your licence. The court has no other options. There are no "drive for work" licences. The only way to avoid licence loss is to fight and win.
  • The police can confiscate your car keys if they believe you are not fit to drive.



Blood tests

  • After a driver has received the result of a breath test, he or she can request a blood test and the police member must arrange for the taking of a sample of blood in his presence by a medical practitioner or nurse. The driver is required the pay any expense charged by the doctor or nurse. It is not expensive to have a sample of blood taken by a doctor. The police member nominates the medical practitioner and the police are entitled to keep a sample of your blood for their own analysis.
  • Most people who ask for blood tests find that the blood test results do not assist them. It is not possible to say whether a driver should or should not ask for a blood test. It is up to the driver to determine whether s/he requires verification of the breath test.
  • Unless you get a blood test you will not be able to prove that the breath test result is incorrect.
  • Because a blood test result can confirm a breath test reading, getting a blood test can sometimes provide more assistance to the prosecution than the defence.
  • A person taken to hospital as a result of a car accident must allow a doctor to take a sample of blood for analysis. (Penalty for refusing: 2 years minimum licence loss).
  • The result of any blood analysis test can be used against you in court either on a drink drive offence or a driving while drug impaired offence.
  • If a driver catches a taxi to visit a doctor immediately after taking a breath test and asks the doctor to take a blood test, the blood test result is confidential and should not be given to the police (even though they often are!), and the test result should not be used in court without the driver's consent.
  • If you are incapable of providing an adequate sample of breath for analysis, the police can require you to allow a doctor or nurse to take from you a sample of blood for analysis (penalty for refusing is 2 years licence loss).
  • The result of a blood test taken following a car accident can not be used in civil proceedings (insurance claims etc).



Drug - Driving: Driving while drug impaired

  • If a police member reasonably suspects a driver to be affected by a drug other than alcohol, the police member can require the driver to undergo a drug impairment assessment.
  • When undergoing a drug impairment assessment, you do not have to answer any questions asked of you by the police (other than to state your name and address if the driving took place in a public place). Your right to silence is not taken away during the drug impairment assessment.
  • It is currently an offence to drive a motor vehicle anywhere in Victoria while the driver is impaired by any drug (s.49(1)(ba) RSA). The Act does not limit the definition of impairment and currently the offence is committed by any person who drives while his normal physical or mental faculties are affected by any substance other than alcohol. This applies to any person found driving after taking a panadol or other "over the counter" drug, as well as all prescription drugs and illegal drugs. The Act has no definition of 'impaired' or 'impairment'.
  • The intended effect of the new drug drive legislation appears to be to make it an offence to drive a motor vehicle while the driver's ability to have proper control of the vehicle is affected by any drug other than alcohol.
  • The offence of 'driving or being in charge of a motor vehicle while under the influence of any drug to such an extent as to be incapable of having proper control of a motor vehicle' remains an alternative to the new drug-drive provisions.
  • Police have the power to require drivers to undergo roadside saliva tests to detect certain illegal drugs, particularly marijuana and amphetamines. It is an offence for a driver to refuse to undergo such a test.



Motor vehicle accidents:

  • If you are involved in a motor vehicle accident (even if no-one is injured!) you must stop your vehicle and render assistance.
  • You must give your name and address and registration number to other drivers involved in the accident, to any person injured, the owner of any property damaged, and any police member present.
  • If the owner of any damaged property is not present, the damage must be reported to the nearest police station. The penalty for failing to report an accident involving property damage is maximum $500.00 fine, or up to 14 days imprisonment. The court has a discretion with respect to imposing a licence suspension period.
  • If you damage another motor vehicle in a parking incident and the owner/driver of the other vehicle is not present, you are obliged to report the damage to the nearest police station.
  • If police investigate an accident they always breath test (or blood test) the drivers, and may also test occupants of accident damaged vehicles.
  • You must not leave the scene of an accident until you have given your name, address and registration number to the driver of any other vehicles, or the owner of any property which has been damaged.
  • If there is no personal injury or third party property damage, there is no requirement to report the accident to the police. The police are usually not interested in investigating an accident unless the accident results in injury, or significant driving offences have been committed.
  • You are obliged to undergo a breath test upon request if a police member reasonably believes you were the driver of a motor vehicle during the previous 3 hours when the vehicle was involved in an accident. (refusing will result in at least 2 years licence loss). If more than 3 hours has passed from the time of driving, there is no obligation to undergo any breath test.
  • If the police find an accident damaged vehicle on a road, they may try to locate the driver (for the purpose of a breath test or to prosecute for careless driving). The police will often find the driver in the vicinity of the motor vehicle, at the registered address of the motor vehicle, or at the driver's home.
  • It is not uncommon to hear about drivers consuming alcohol after an accident. Sometimes this is a result of stress and shock. Drinking after an accident will not exempt you from having to take a breath/blood test. That obligation remains for 3 hours after driving. Sometimes drinking during that 3 hour period will make things worse, because it will increase your reading. Usually it is impossible for a court to reduce your reading even if you prove (with witnesses) post-accident consumption of alcohol.
  • In order to prosecute a person for drink driving following an accident, the police need evidence (such as a witness or a confession) to prove the time when the accident happened.
  • In a single vehicle accident, the police usually rely on admissions made by the driver to determine the time of accident and the identity of the driver of the damaged vehicle.
  • If a driver involved in a motor vehicle accident which results in personal injury or damage to the property of an absent owner delays in reporting the accident to a police station, he could be charged with failing to report the accident as soon as practicable.
  • A driver who is found guilty of a drink driving offence is usually unable to rely on his insurance policy to cover any property damage arising from any accident at the time of the offence. Likewise if an owner lends his car to a person who subsequently drink-drives and has an accident.
  • If you are in a car accident and the other driver is prosecuted for drink driving, you will find that the driver's insurance will be void if he is found guilty, so you may have trouble recovering the cost of repairs to your car. You may have to commence civil proceedings against the uninsured driver to recover the cost of repairs.

    Some Examples

  • Suppose you drink one light beer stubby at the office before you drive home, apparently without incident. You then drink 5 cans of full strength beer in the 2 hours after getting home. The police then knock on your door and you answer it. They are investigating an allegation that your vehicle was involved in an accident 2 hours ago. The police could then require you to undergo a preliminary breath test. It is very likely that you will commit an offence if you refuse, and because of the beers you just drank, you will commit an offence if you obey. If your reading is over the limit, you will lose your licence for at least 12 months in the event that your blood alcohol content reading is over 0.12% (which it most probably will be). It doesn't matter that your wife can swear that you drank 5 cans of beer in the past 2 hours. This applies even if this is your first offence in 40 years of driving. Even if you prove to the court, and the Magistrate accepts as the fact, that you had a BAC of only 0.01% when you drove home, it is no defence. This is because the offence is committed at the time you provide the sample of breath, not when you drove the car (i.e you are not guilty of drunk driving, but drunk blowing!).
  • If within the next 10 years you are again found guilty of drink driving (or drink blowing) with a reading of 0.05%, you will lose your licence for a mandatory period of at least 12 months for this second offence.
  • Suppose the police find your car parked irregularly, and the front bumper of the car is hard up against a broken planter box in a hotel car park. You parked it there at 9.30 PM. At 11.00 PM you take a taxi home after you have been drinking at the hotel. At midnight you answer a knock at the door. The police ask you if you parked your car at the hotel that evening. They ask you what time you parked it there. Being an obedient citizen, you tell them. They smell liquor on your breath and suspect you have been drinking. They ask you to take a preliminary breath test. You object but they tell you that you are obliged to do the test, as it has been less than 3 hours since you drove the car, and it has allegedly been involved in an accident with a planter box. They then ask you to come to the city police station for a breath test. You say you have not driven the car since you started drinking that night. They say it doesn't matter. If you refuse to accompany you will commit an offence and lose your licence for two years. If you go with them you know you will commit an offence of blowing in excess of 0.05%. You are not able to produce any witnesses to prove that you had nothing to drink prior to driving the car to the hotel. Because of the alleged "accident", you will be convicted for exceeding 0.05%, unless you can prove you did not have an "accident", or unless your lawyer challenges the police case on a technical basis.
  • Suppose the driver above was found by the police asleep in his car and was awoken by the police at midnight. The same consequences would apply, even though he clearly was not driving or 'in charge' of the car when found by the police, provided the police obtain information of the time the planter box was hit and that he was the driver at that time.
  • Suppose the driver above had dinner but no alcohol at the hotel (because he is on a zero limit). He parks his car as described above, then later drives home. At 11.30 PM he has a couple of full strength beers on his own at home. At midnight he answers the door as described above. The police allege his car was involved in an accident with a planter box at the hotel that evening. He makes full admissions of driving and parking his car & carelessly bumping the planter box. The law says he will be convicted of drink driving even though all of his consumption occurred since driving. This is because he is unable to produce any witness to corroborate that his reading is solely a result of what he drank at home after driving his car. The law says his reading is assumed to have existed at the time he drove, even though he can produce witnesses to say that at the hotel he drank no alcohol. The fact that he drove alone leaves open the possibility that he consumed alcohol in the car, and because of the corroboration rule, he can't prove that he didn't.
  • If the driver in the previous example had witnesses who can testify as to what he was doing every moment of that day, and what he drank, then he may have a defence to the charge on the facts.
  • In the same way that technicalities are used to prosecute and sentence drivers who may not have been drunk at the time of driving, so too can drivers rely on technical matters to defend charges successfully and avoid draconian mandatory sentences.



Personal injuries in an accident:

  • The rules above applicable to accidents involving property damage also apply to accidents involving personal injuries.
  • If any person is injured the driver must report in person details of the accident to the nearest police station as soon as practical (this applies even if you are the only person injured).
  • A person taken to a hospital as a result of a motor vehicle accident must allow a doctor to take a sample of his blood. This applies even if three hours has elapsed from the time of the accident. Penalty for refusing is 2 years licence loss and up to $1,200.00 fine.
  • A sample of blood can be used to prove a drink driving or drug driving offence, and the method of proof is much easier for the police when the sample is taken within 3 hours of the accident.
  • The maximum penalty for failing to report an accident involving personal injury or death is a fine of up to $2,500.00 or imprisonment for up to 4 months, and in the case of a serious personal injury or death, the driver will (upon conviction only) suffer a licence cancellation for a minimum of 2 years. You may need legal advice to determine what sort of injury comes within the definition of serious injury. In the unlikely event that a fine without conviction is imposed, a lesser cancellation period can be ordered.



Right to Silence

  • Whenever you are spoken to by the police you have a right to remain silent save for situations where parliament has passed laws that oblige you to give information.
  • A driver of a motor vehicle on a highway is required to state his/her name and address, otherwise he/she may remain silent.
  • A registered owner of a motor vehicle must give information known to him which may identify the driver of the motor vehicle at any particular time (penalty 2 years licence loss).
  • Answering police questions usually helps the police to prove an offence has been committed.
  • If you are asked for your reason for committing any offence, stating a reason can be interpreted as an implicit confession to having committed the offence, but is rarely accepted as exculpation for it: e.g. "Why were you traveling in excess of the speed limit?' - "Because I was late picking the kids up from school" can be taken as an admission to speeding but is not a reasonable excuse for it.
  • When the police ask you for your reason for committing an alleged offence it is in your interests and within your rights to remain silent or to deny committing any alleged offence rather than offer any explanation for your actions.
  • Usually the police won't exercise their discretion to "let you off with a warning" unless you have an extraordinarily meritorious and believable excuse, or your denial causes sufficient doubt to linger in the police member's mind.
  • If you are required to undergo a full breath test, the police will ask you lots of questions. The answers to these questions generally help the police prove their case and often prevent you from raising defences that might otherwise have existed. Answering questions greatly increases the likelihood that the police will charge you with an offence. Everything you say will be recalled and used against you in court. The police will use your answers to prove essential facts such as who was the driver, time of driving, time of accident and time of drinking etc.
  • Answering police questions is generally not in your interests and is often very damaging to your defence. It is easier to defend charges if a driver has told the police nothing more than his name and address. Every word a driver utters is usually 'another nail in his coffin'.
  • If you think there is something important the police should know, your lawyer should be able to communicate it to the police on your behalf.
  • If, despite the above, you decide it is best to answer police questions, you can insist upon the conversation being tape recorded. There are tape recording facilities at every police station and you have the right to insist that they be used before you answer any questions. (Make sure the tape is in and the record button is pushed before you start the interview). This is usually the only way you can verify the conversation afterwards, especially as it will be alleged in court that your memory was affected by alcohol or drug. Police procedure guidelines require tape recording facilities be used when conducting interviews where such facilities exist. Despite this, it is extremely rare for tape recordings to be made of traffic offence interviews.
  • A significant percentage of cases in the Magistrates Court involve people who believed they had 'nothing to hide' and who voluntarily attend police interviews only subsequently to regret having done so when they discover that the result of the interview is that the police nevertheless lay charges against them. It gets even worse when the defendant's lawyer advises the defendant that had they chosen to remain silent and not to attend the police interview the police would have had insufficient evidence to prosecute the charge. This probably happens daily. Although a defendant who is co-operative will usually have that taken into account in mitigation and in reduction of penalty, this is impossible in drink driving cases because there is mandatory sentencing for all drink driving offences. The court has no discretion and a co-operative driver will commonly get the same penalty as an uncooperative driver. Mandatory sentencing removes the incentive to answer police questions, and increases the incentive to defend drink driving charges.
  • If Magistrates had normal full sentencing discretion, many more lawyers would advise drink drivers to make full admissions, be co-operative, demonstrate remorse, plead guilty and try to avoid or reduce licence loss.



If you are questioned by the police:

  • You have to state your name and address if the police reasonably suspect you have committed an indictable or summary offence and the police member tells you what that offence is, or the police member reasonably believes you are able to assist in the investigation of an indictable offence.
  • You do not have to go with the police unless you are arrested (in which case you usually have no choice)
  • Generally, you do not have to produce any identification (but if you are arrested you will get bailed quicker if you do)
  • If the police request you to attend at the police station to assist them with their investigations, you do not have to go. If you go you do not have to answer any questions and you can leave at any time provided you are not under arrest. You can have a lawyer accompany and advise you. See also Right to Silence.
  • If you are the registered owner of a vehicle, you must not refuse to give police information that may lead to the identification of the driver of your vehicle on any occasion. (Penalty: at least 2 years licence loss and up to 4 months prison).
  • You are never obliged to say or do anything unless the law imposes a penalty upon you for failing to do so.
  • The police do not have power to search you (unless they have reason to believe you have possession of an illegal substance or thing).
  • If the police try to search or detain you unlawfully you can use reasonable force to resist them.
  • You have to state your name and address when requested by an authorised person if you are driving a motor vehicle on a highway.
    You are also obliged to do so under provisions of some legislation.


If the police come to your door:

  • Generally, the police have no power to enter your home (whether it is to speak to you, to breath test you or for any other reason) without a search warrant.
  • You are not obliged to answer the door of your home if the police (or anyone else) knocks on it.
  • You do not have to let the police inside (but if they have a search warrant they will exercise their right of entry).
  • You do not have to say anything to the police (unless certain legislation requires you to provide certain information, e.g. a registered owner of a vehicle must disclose the identity of any person driving the vehicle if requested).
  • You can ask the police to leave your property at anytime.
  • If you answer the door the police may ask you to undergo a breath-test and in that case you must undergo the test else face a charge of refusing a breath test.
  • If your door is left open the police might walk in without seeking an invitation.
  • The police may ask you for permission to look in your premises (cupboards. boxes, sheds etc.) It is your choice whether you let the police search your personal property but generally it is not in your interests to do so.


Related Pages:

Drink Driving
Demerit Points
Mandatory Sentencing

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