A correspondent from Victoria finds herself in quite a bit of trouble and is ‘feeling very lost and in need of guidance’. Despite the unfortunate nature of her problem she says she ‘sought advice from my unit head … and she turned me onto your blog. You are welcome to post this on your blog if it would answer other people’s questions as well’. With that invitation I do post the details and my answer here.
I got caught DUI (0.12) after a big night out, and I lost my license on the spot and will have to go to court. I will be graduating in two years’ time and want to know if this will affect my application. I have heard I shouldn’t bother applying until at least five years, so I would drop out and try again in a couple of years.
On one view this is not a legal question; the issue of who they select for employment is entirely a matter for Ambulance Victoria. They do provide some advice at www.ambulance.vic.gov.au/About-Us/Careers/New-Graduates.html where they say that an applicant for graduate employment must hold “A full Victorian driver’s licence or held a P2 probationary licence for at least 1 year prior to commencement”. That invites some consideration of what is a full licence and other issues of the relevant law which I’ll address.
DUI is shorthand for ‘Drive under the influence’ (Road Safety Act 1986 (Vic) s 49(1)(a)). That section says:
A person is guilty of an offence if he or she—
(a) drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle;
The critical issue here is not the level of the alcohol in the blood but whether or not the driver is ‘under the influence … to such an extent as to be incapable of having proper control of the motor vehicle’. The police don’t need a breath test to prove this offence and you can be under the legal limit and still ‘under the influence’. People use DUI as a shorthand for all drink driving offences but that’s not the relevant offence here.
In my correspondent’s case the relevant offence is ‘driving with the prescribed concentration of alcohol’ (often referred to as PCA). The essential issue in this offence is that when subjected to a breath analysis the driver has ‘more than the prescribed concentration of alcohol is present in his or her blood or breath’ (Road Safety Act 1986 (Vic) s 49(1)(b)). The issue is not whether or not you are under the influence but whether the breath or blood test returns a reading above the legal limit. The ‘prescribed concentration of alcohol’ is ‘a concentration of alcohol present in the blood of that person of 0·05 grams per 100 millilitres of blood’ or ‘a concentration of alcohol present in the breath of that person of 0·05 grams per 210 litres of exhaled air’ (s 3).
A police officer may immediately suspend the drivers’ licence of any person who is caught driving with a reading of 0.10 or higher (Road Safety Act 1986 (Vic) s 51).
The maximum fine for a first offence where the reading is less than 0.15 is 20 penalty units (s 49(2A). As at 1 July 2015 the value of a penalty unit, in Victoria, is $151.67 (http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/) so the maximum fine is $3033.40. The driver will also face a minimum period of disqualification from driving of 12 months. The maximum period of disqualification is ‘such time as the court thinks fit’ (s 50(1)(a)(ii) and Schedule 1).
After 12 months the driver can apply to have her licence renewed. To do that she needs to apply to the Magistrate’s court for a ‘licence eligibility order’ (s 31A). When making an order to the effect that the person is eligible to gain a drivers’ licence the court may, and in some cases must, make a ‘alcohol interlock condition direction’ (s 50AAA). Where the offence was an offence contrary to s 49(1)(b), was a first offence, was committed on or after 1 October 2014 and with a reading of less than 0.15 (which is the case here) the court must impose an ‘alcohol interlock condition direction’ for 6 months. During that time the driver must only operate a vehicle with an approved alcohol interlock device is fitted (s 50AAA (2) and Schedule 1B, cl 14A).
If the driver was under the age of 25 at the time of the offence she must also complete an accredited driver education program (s 50A).
VicRoads say that when your licence is reissued it will be the same as the one previously held (that is a full licence holder does not go back to “P’s” etc). See also ‘Getting your licence back’ (https://www.vicroads.vic.gov.au/licences/licence-and-permit-types/licence-conditions) and https://www.vicroads.vic.gov.au/licences/demerit-points-and-offences/drink-driving-offences/getting-your-licence-back-after-a-drink-driving-offence).
Is 5 years a golden number? Not in Victoria. There is no ‘spent conviction’ legislation in Victoria. A criminal record will reveal all prior convictions no matter how old (Criminal Procedures Act 2009 (Vic) s 77) unless the offender was aged under 18 years and the offence was committed more than 10 years ago. For future driving offences a driver is a considered a ‘first offender’ if their last conviction was more than 10 years ago (Road Safety Act 1986 (Vic) s 50AA).
Victoria Legal Aid advise that if you, or someone you authorize, applies for a copy of your criminal record it will only reveal convictions less than 10 years old (see ‘How far back do criminal record checks go?’ at https://www.legalaid.vic.gov.au/find-legal-answers/going-to-court-for-criminal-charge/possible-outcomes-for-criminal-offences/criminal-records) but I can’t see any legislative basis for that limitation. It appears that this rule is a product of the Victoria police ‘release policy’ (see ‘Frequently Asked Questions – National Police Certificate’ http://www.police.vic.gov.au/retrievemedia.asp?Media_ID=34692).
Conclusion
Let us assume all of this has been done and my correspondent has had her licence returned and served her 6 month interlock period. Then she has a full driver’s licence. Can she now apply to Ambulance Victoria (AV)? It would seem that she then meets the criteria of ‘A full Victorian driver’s licence’ but that doesn’t mean AV have to give her a job. There are many paramedic graduates, no doubt more graduates than there are jobs and no doubt AV will rank them in order of preference. AV may well decide that a prior conviction and a prior traffic conviction in particular makes someone a less desirable candidate that a person with no prior convictions. How AV deals with this issues is not a legal question (ie there is no relevant law on the matter) but one of their own policy. To answer how they will approach the matter my correspondent will need to make enquiries with AV. One hopes that they take the approach that a person, having suffered the penalty imposed by law, has ‘done the time’ and been punished for their offending so the prior conviction is irrelevant, but that can’t be guaranteed. As Victoria Legal Aid say (see ‘Is it fair to be asked?’ at https://www.legalaid.vic.gov.au/find-legal-answers/going-to-court-for-criminal-charge/possible-outcomes-for-criminal-offences/criminal-records):
There are no laws in Victoria against employers who discriminate against someone because of a criminal record. However, the Australian Human Rights Commission may be able to help with complaints.
Post script
Neither my correspondent, nor anyone else, should rely on these comments, particularly in relation to sentencing. Sentencing is a very complex matter and courts do have discretion that I haven’t discussed fully in order to keep the answer relevant and not too complex. If you are facing a criminal charge, including DUI or PCA you should seek a solicitor or barrister of your choice to represent you in court and to make sure all of the options open to the court are explained to you, and explored with the Magistrate or Judge. If you don’t already have a lawyer you may like to look at the Law Society/Law Institute website in your state or territory to find a list of accredited specialists in criminal law. (In Victoria go to http://www.liv.asn.au/Specialists)
Australian Emergency Law 
There may be laws against discrimination, however, since when has that ever stopped anyone. Any service i have worked for takes driving offences seriously. 6 demerits takes you off road. Frim what I have seen, she sjould move to another state. For some reason, the offenses do not show up on police clearances after being served. I do know of someone who applied to have the record sealed, however, when it comes to drink driving and being medical, she went in the lowest of low basket. The second time she applied, it was granted on the grounds it was preventing her from gaining employment as a nurse. Which it was.
If you ever become a two timer, forget paramedicine or nursing.
Thanks Terry, but just to repeat what I said in the original post ‘There are no laws in Victoria against employers who discriminate against someone because of a criminal record’. Discrimination is a necessary fact of life, we ‘discriminate’ every time we make choices whether it’s about who we employ or what ice cream to choose. What is unlawful is making decisions on employment, the provision of services and generally how we treat other people but only when that discrimination or choice is based on characteristics that are prohibited; characteristics of gender, race, sexual preference, age, disability etc. It is not unlawful to ‘discriminate’ (that is to recognise a difference and to make choices) based on other criteria, in this case a prior conviction. AV would not commit a ‘discrimination’ offence if they ranked an applicant with a drink-driving conviction lower than an applicant who did not have a similar conviction.
While the question of future employment prospects is important, the more pressing question should really be ‘will your corespondent be able to continue her degree?’ Every 12 months students must pass a ‘fit2work’ police check, while I’m uncertain as to what constitutes a ‘pass’, this PCA conviction could result in the denial of clinical placements which is a key part of the degree, failure to complete them would result in being unable to progress in the degree and graduate. I would recommend that your corespondent discuss this with the relevant department of her university.
AV has employed graduates with drink driving convictions in their past. It has also retained staff who have been convicted whilst in AV employment, whilst terminating others. The key element is the manner in which the individual has approached the situation and their personal integrity. I was personally involved with terminating an employee who endeavoured to hide/obscure the fact that they had lost their licence for drink driving. This showed a lack of integrity and was deemed essentially dishonest behavior so termination was appropriate. Other staff members have been detected (off duty!) with > .05% readings; they have immediately contacted their upline managers, openly disclosed their situation and worked with management towards a solution. Generally all leave has been expended, and occasionally some time without pay until they have regained their licence. This approach shows a willingness to personally acknowledge a wrongdoing and take responsibility for their actions, as well as a laudible degree of personal integrity. I am aware of a graduate student employment of a man in his late 20’s who openly offered the information in his employment interview and was accepted. He was not aware of whether AV had that information or not via a police check so did not wish to jeopardise his chance of employment by withholding information that could impact on him later in the selection process. He is now successfully into his career as a paramedic. I appreciate that the scenario your correspondent finds herself in is unfortunate, but if she remains upright and honest at all points in her selection process she may well find herself employed as a result of that demeanour. The conviction alone may well be offset by the rest of her employment process and CV.