Drink Driving

Drink Driving

Drink driving is term commonly used to describe the two drinking and driving offences under the Road Traffic Act 1961 (SA):

• Driving with a prescribed concentration of alcohol in the blood (PCA) [s 47B]; and
• Driving under the influence of alcohol or drugs (DUI) [s 47].

It is also an offence to refuse to comply with directions in relation to a breath test (Refusing to Blow) [s 47E].

Driving with a Prescribed Concentration of Alcohol

It is an offence to drive, or attempt to drive, a motor vehicle while there is more than the ‘prescribed concentration of alcohol’ in your blood. It makes no difference if you did not feel drunk at the time, you didn’t drink very much or your driving was not effected in any way.

The law is strict as to the amount of alcohol that can be present in a person’s blood when driving. For full licence holders, the maximum allowable blood alcohol level is 0.05. For learner, provisional or probationary licence holders, any alcohol in the blood is a breach of licence conditions. If the level of alcohol exceeds 0.05 the driver may also face charges of exceeding the prescribed concentration of alcohol.

If found guilty of drink driving, you may be disqualified from holding a driver’s licence for up to a period of 3 years.

Our criminal lawyers at Caldicott + Isaacs Lawyers are experts in all driving matters and specifically drink driving.

If you do decide to plead guilty to drink driving, we can assist you to get the best possible result. Our team of specialist drink driving lawyers have extensive criminal law experience and know the best way to present your drink driving case before each of the Magistrates in the state.

Before proceeding to plead guilty, the first thing we at Caldicott Lawyers do is make sure there is no possible defence to drink driving available to you before. We then proceed to make certain, as best we can, that you get the absolute minimum penalty.

We can offer you advice about the fines that may apply and how to pay them. We can also offer you advice about the alcohol interlock device that may need to be fitted to your car at the end of your licence disqualification period.

We are mindful that your car may be impounded or retained as a result of a prior drink driving offence. We will speak to the prosecutors before the event and ensure there are no hidden difficulties that you may not be aware of.

Deciding whether or not to plead guilty to drink driving has important implications and should be made after proper discussions with an expert criminal lawyer with experience in drink driving.

Call 08 8120 3783 to make an appointment with one of the knowledgeable lawyers at Caldicott + Isaacs Lawyers for assistance with your drink driving matter.

You weren’t driving

In some drink driving cases, the wrong person is charged with the offence. There are a variety of ways this can occur, such as an administrative error on the prosecution’s behalf or perhaps the offender was carrying your identification. Regardless, it is a complete defence to a drink driving charge if you can show that you were not driving the vehicle.

You weren’t driving on a road

If you were driving on private property when charged with drink driving or you were driving in an area that is enclosed and not accessible to the public, then you will have a defence to a drink driving charge. However, if the area is open and accessible to the public, then the area may be deemed a road and you will be deemed to be drink driving.

Breath analysis machine was defective

If there is evidence that the results returned by the breath analysis machine were inaccurate, this will be a defence to a drink driving charge. It is worth investigating to determine whether or not the breath analysis machine was defective.

If you obtain a blood test after you have been reported for the offence and it shows a significant discrepancy between the blood alcohol reading in the blood when compared to the breath analysis, this also may give rise to a defence. This is subject to obtaining a calculation as to the elimination rates of alcohol from your system. We know that the elimination rate varies as between individuals and different occasions for an individual.

Further, for a charge of drink driving, if the breath analysis reading is very close to the limits imposed by legislation (namely just over 0.05, just over 0.08 or just over 0.15), then it may be worthwhile speaking to the prosecution with a view to having the alcohol level lowered to a lesser category. This is possible because there is a plus or minus error in the analysis undertaken by the breath analysis unit.

In other words, we may be able to have the drink driving charge lowered by making representation to the prosecution that the charges should be less.

Honest and reasonable mistake of fact (Proudman v Dayman defence)

If you genuinely believed that you were not under the influence of alcohol, and it was reasonable for you to hold this belief (e.g. alcohol had been served to you without your knowledge), then you may have a defence to a drink driving charge.

You will need to have evidence to support a claim that you did not know you were given alcohol. This may involve a trial, however, if there is sufficient proof, you may be able to convince the prosecution to withdraw the drink driving charge altogether.

You consume alcohol between the time of driving and the test on the breath analyser

Drink driving legislation is designed to punish and prevent people driving while intoxicated. Therefore, if you consume alcohol immediately after a crash, but not at the scene and just prior to a breath analysis or blood test, you may have a defence to a drink driving charge.

Alcohol should not be consumed at the scene of the crash as sometimes people use this to mask the fact that they had been drinking alcohol prior to the crash.

You will need to be able to demonstrate to police that you had been drinking after the crash and the amount of alcohol you consumed.

Breath analysis conducted more than two hours after driving

There is a two hour period, commencing from when the alleged drink driving offence occurred, in which a breath analysis must be taken. In the event that you are tested more than two hours after driving your vehicle, the results of the breath analysis are unable to be used to for the purpose of proving a case against you.

Where there has been a crash, it may be important to ascertain the actual time of the crash. You could do this by obtaining copies of police communications transmissions or telephone records of eyewitnesses who made a call at the relevant time. These documents may become very important in proving that the period of time was more than two hours, giving rise to a defence.

Police did not comply with their legal obligations

The Road Traffic Act 1961 (SA) and the Road Traffic (Miscellaneous) Regulations 2014 outline a number of procedural conditions that the police must comply with in relation to breath and blood analysis. If the police fail to comply with any of these requirements you may have a defence to a drink driving charge.

Examples include:

• where the police have failed to alter the time on the breath analysis unit when daylight saving occurs, causing the printout to register that the breath analysis was conducted at a time prior to when it actually occurred; and
• if the police do not provide you with a written document advising you of your rights to a blood test or talk you out of having one.

Further, for a drink driving charge, police must conduct two breath analysis within a 10 minute period, no less than three minutes apart. If the police fail to do this, they have breached the regulations and you will not be guilty of a drink driving charge.

Police do not have the appropriate forms

For a charge of drink driving, the police must provide you with documentation to prove the following:

1. that the breath analysis machine was in good, working condition;
2. that they complied with the requirements to provide notices to the person charged; and
3. that they have completed and signed off on the documentation proving the offence.

Omission of any of these will be a defence to a drink driving charge.

The prosecution must prove:

1. That you were driving a motor vehicle or attempting to drive a motor vehicle on a road.
2. That you had a reading of more than 0.05 grams of alcohol in your blood at the time of driving the motor vehicle.
3. That the breath analysis machine was operating correctly.
4. That they have correctly applied the screening presumptive alco tester to yourself to prove that you were drink driving.
5. That blood test was not outside the two hour period from the time of the driving until the analysis.

In addition the police must have all of the necessary documentation available to prove:

1. The breath analysis.
2. That the person operating the breath analyser was authorised to do so.
3. That all the necessary paperwork was provided to the person who has been charged with drink driving.

Come and see the professional team at Caldicott + Isaacs Lawyers for assistance in your drink driving matter.

In South Australia, if you commit a serious drink driving offence, you must have an ‘alcohol interlock device’ fitted to your vehicle at the end of your licence disqualification period. The scheme will likely apply for a time equal to your disqualification period.

Under the Road Traffic Act, the following are serious drink driving offences to which the scheme applies:

• second or subsequent drink driving offences above 0.08;
• driving with more than 0.15 blood alcohol level;
• refusing to provide a breath or blood sample for alcohol testing; or
• driving under the influence.

The cost of fitting the alcohol interlock device will be the responsibility of the driver, but a concession scheme is available to eligible card holders.

Some of the conditions of a mandatory interlock scheme include:

• that a driver must not drive any other vehicle other than that nominated to the registrar and has been fitted with an alcohol interlock device;
• that a driver must not interfere with the device or cause or permit the device to be interfered with; and
• that the driver must carry a certificate certifying that the alcohol interlock was property functioning when last examined.

It is paramount that the driver must not drive the nominated vehicle unless it has been fitted with a properly functioning alcohol interlock device, installed by an approved provider.

It is an offence to contravene a condition of a mandatory interlock scheme. Penalties range from $2,500 and upwards. It is even an offence to assist a person subject a scheme to contravene a condition.

It is important when dealing with drink driving matters that you obtain legal advice as to the possibility of being subject to a mandatory alcohol interlock scheme.