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Defences to drink driving

Is it possible to get off a drink driving charge?

Almost all drink driving charges result in a plea of guilty. This is partly because there are very few defences available and partly because the law deems that the breath analysis machine is accurate. If you think you may have a defence to a drink driving charge it is always best to have an experienced traffic lawyer review your case as soon as possible.

Proving that the breath test was not accurate

There is a common misconception that the Police need to prove that the test was accurate. You’ll commonly see people on social media sites saying things like, “Ask them to prove the machine was accurate – if they can’t you’ll get off”. This is not true. The law sets out that the prosecution does not have to provide any evidence about the condition of the machine or the manner in which it was operated.

When you’re charged with drink driving the police usually give you a breath analysis certificate. This certificate sets out the reading, time and date, and the details of the person who performed the test. This is legally deemed to be proof of the reading and is accepted by a court unless the defendant can prove otherwise. This means that the person charged bears the obligation of proving that the reading is incorrect.

Arguing that the machine was not accurate is therefore a very difficult task. It also becomes a very costly exercise as you would need an expert to provide a report and/or attend court to give evidence. In some circumstances you may be able to engage a pharmacologist to persuade the prosecution that at the time of driving your reading would have been lower. This is discussed below.

If you’re breath tested outside the time limit

If you’ve been charged with drink driving the police would have conducted a breath test and then a breath analysis. A breath test is conducted at the scene. Police use a hand held alcolizer that you talk into or blow into via an attached tube. A breath analysis is conducted either back at the police station or sometimes in an RBT bus on the roadside. The difference is that the breath test provides an indication that you are over the limit. This gives police the power to detain you for a breath analysis. It is the breath analysis which provides the reading accepted by a court. The breath analysis needs to be conducted within two hours.

The two-hour time limit commences from the time the police can show that you last drove or attempted to drive. This is commonly an issue when police attend an accident scene. If police arrive an hour after the accident then there is only one hour left to perform a breath test, and then take the person to a police station for a breath analysis. In circumstances where it is clear that the test cannot be done within two hours the police charge the person with DUI or ‘driving under the influence’ instead. This charge does not require a breath analysis to be conducted and can be based on the observations of police and the completion of a sobriety assessment.

There is a time limit to when you can be breath tested and this may be a defence to a drink driving charge.

Police can’t breath test you at your home

The police cannot breath test a person if they are at their home. The law used to use the term ‘place of abode’. You may hear it referred to as the ‘home safe rule’ meaning if you’ve made it home, you’re safe and cannot be tested. Exactly what constitutes your home has been considered by the courts many times. Your home is your usual place of residence. If you are staying at a friend’s place, hotel, or similar you may still be subjected to a breath test.

The definition of your home also extends to the boundary of your property. This means police cannot test you in your driveway once you are past the perimeter of your property. If you voluntarily walk out of your property you can be tested. Also, if you are arrested and removed from you property for another reason you can be tested. This usually only occurs following serious offences such as police pursuits.

You were not the driver of the vehicle

The legal test for a police officer to be able to breath test you is lower than what needs to be ultimately proven at court. Police can require you to submit to a breath test if they have a ‘reasonable belief’ that you were driving or attempting to drive a vehicle. However, at court they must prove ‘beyond a reasonable doubt’ that you were driving.

This creates two different issues that may arise. The more frequent is where there may be a difficulty in proving the actual person who was behind the wheel at the time. The other is where the person’s identity is known but there is a difficulty proving that they were actually driving at the time. Driving is a conscious and voluntary act. In matters where a person is found intoxicated and asleep or unconscious at the wheel the prosecution needs to prove the actual time that they were conscious and driving.

Prosecutions are regularly lost, and matters dismissed in cases where the police are unable to prove that the person charged was in fact the driver at the time.

Disputing the reading obtained

Although not strictly a defence to drink driving there are some circumstances where it may be possible to have the charge reduced. However accurate a breath analysis machines are – they are still testing your BAC (Blood alcohol concentration) up to two hours after you were driving.

Depending on a range of factors your blood alcohol concentration may have been lower at the time of driving that what it was when the breath analysis was conducted. This difference in reading can be as a result of certain medication, food consumed, your build, and timing of your drinks.

In these situations, a good drink driving lawyer will engage a pharmacologist to provide an expert report. This report is based upon information provided by you about your drinking. Once the report has been completed, comprehensive representations are forwarded to the prosecutions explaining why the charge should be reduced. Marsh Blom Lawyers have been successful in having drink driving charges reduced. A reduction from high range PCA to mid-range PCA can halve the applicable interlock period. And a reduction from mid-range PCA to low range PCA can avoid an interlock period altogether.

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