Driving With Excess Breath Alcohol (EBA)

The current legal limits

Under the Land Transport Act 1998, the limits that apply depend on your age.

For drivers 20 and over:

• A breath alcohol level between 250 and 400 micrograms per litre is an infringement offence, resulting in a $200 fine and 50 demerit points, with no criminal record
• A breath alcohol level exceeding 400 micrograms per litre is a criminal offence
• The equivalent blood alcohol thresholds are 50 to 80 milligrams per 100 millilitres (infringement) and over 80 milligrams (criminal)

For drivers under 20:

• A zero alcohol limit applies
• A breath alcohol level up to 150 micrograms per litre is an infringement offence
• A breath alcohol level exceeding 150 micrograms per litre is a criminal offence, with the same higher thresholds as adults applying to the more serious penalty bands

Penalties for a criminal EBA conviction

For a first or second EBA offence, penalties can include a fine of up to $4,500 or up to three months' imprisonment, along with automatic disqualification from driving for a minimum of six months. For a third or subsequent offence, penalties increase significantly, including fines of up to $6,000 or up to two years' imprisonment, with a minimum one-year disqualification.

Roadside licence suspension

Your licence can be suspended on the spot if you refuse an evidential breath or blood test, or if your reading exceeds certain higher thresholds. A lower suspension threshold applies if you have a relevant prior conviction within the last four years.

How EBA cases are tested

Police are required to follow specific legal procedures when administering breath and blood alcohol tests, including the correct use of approved testing devices and adherence to required processes and timeframes. Errors in how a test was conducted, including issues with the device used, the timing of the test, or how the process was explained to you, can in some cases provide grounds to challenge a charge.

Limited licences

If you are disqualified from driving following an EBA conviction, you may, depending on the circumstances, be able to apply for a limited licence, allowing you to drive for essential purposes such as work. Eligibility depends on the nature of the offending and your driving history.

Why early advice matters

Because EBA cases often turn on the precise testing procedure followed by Police, early legal advice allows this process to be properly reviewed. Understanding your options, including whether the charge can be challenged and what the likely consequences are for your licence, is important as early as possible.