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20
Sep

What are the defences to drink driving?

A number of defences may be available if you have been charged with drink driving.

Can I argue the breath analysis machine was wrong?

Breath analysis machines used to record a driver’s blood alcohol limit are generally considered to be highly accurate. These machines are regularly calibrated and there is very little scope to dispute the accuracy of these machines. However, there are still four defences that may be available to you if you’ve been charged with a drink driving offence.

What if I was not the driver?

One of the key elements the prosecution must prove is that you were actually the driver of the vehicle. While a police officer can require you to take a breath test if they ‘have reasonable cause to believe’ that you were the driver they still need to prove that you were the driver ‘beyond a reasonable doubt’ at court.

As former prosecutors, we have seen countless drink driving matters withdrawn or dismissed when the police have been unable to prove who was actually driving the vehicle. If you believe that you were not the driver of the vehicle yet you have been charged with drink driving you should get in touch immediately for advice.

What if I wasn’t actually driving at the time?

The Road Transport Act 2013 says that it if you’re over the limit it is an offence to ‘drive a vehicle’ or to ‘occupy the driving seat of a motor vehicle and attempt to put the motor vehicle into motion’. So, the police need to prove that you were in the driver’s seat and you were attempting to put the vehicle into motion – merely sitting in the driver’s seat is not enough for you to be found guilty.

To prove that you attempted to put the vehicle into motion the prosecution need to prove that it was your intention to move the vehicle and that you did at least some physical acts to achieve that intention. If you have been charged with drink driving but believe that you were not actually driving you should contact us immediately for advice.

They tested me too late

Schedule 3 of the Road Transport Act 2013 sets out that police must perform the breath analysis within two hours of the time that you were driving. If the test is performed more than two hours after this then the result of the breath analysis may be inadmissible and the charges may either be withdrawn by the prosecution or dismissed by a court.This commonly occurs when police are delayed attending an accident scene and are not able to get you to a BAS machine within two hours.

 

They breath tested me at home

The Road Transport Act 2013 prohibits police officers from conducting breath tests on a person who is ‘at their home’. This is often referred to as the ‘home safe rule’. The concept of ‘home’ has been examined in a number of cases and it has been found that a person may, in some circumstances, have multiple homes. Also, it has been determined that a carpark attached to a block of units is capable of being defined as being part of a person’s ‘home’ if they live in the unit complex. However, if the police follow you and arrest you at your home or in your driveway for another purpose (e.g. a police pursuit) they can later breath test you once you are brought out onto the roadway.

If you’ve been charged with drink driving and you believe you were tested at your home you should contact us immediately for advice.

The importance of specialised legal advice

Drink driving charges are a serious offence and can result in large fines, loss of your licence, and even imprisonment. If you’ve been charged with a drink driving offence you should get in touch with us  immediately. We can review your case and advise you if you have a defence and also what you can do to ensure the best outcome at court.

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