Updated 1 Jan 2021
With regards to drink driving defences, there are a number of issues that can arise in DUI offences that may provide an effective DEFENCE to the charge. These may be suitably classified as follows:
- Driver – like any driving offence, police must be able to prove who the driver was that committed the offence.
- Was the vehicle being driven or attempted to be put in motion.
- Time – was the breath analysis at the Police Station, taken within the two hour period required under the legislation.
- Was the breath test taken at the person’s home.
- Was the blood alcohol concentration of the driver at the time of driving the same as it was when the test was carried out at the police station.
There are probably other matters that might be raised in a prosecution, but these are perhaps the more common and important ones that might found a defence to the charge.
Drink Driving Defences to Consider
Who was the Driver?
Drink Driving charges generally arise as a result of a Random Breath Test or where a motorist is involved in an accident or an incident involving police.
Where a motorist is stopped for a Random Breath Test and fails the test, there is little issue as to who the driver is.
Issues do arise however, when a person is involved in an accident or incident and the driver leaves the vehicle. Police must depend upon witnesses to point out the driver. It is important that the driver be identified immediately, owing to the time limits involved in determining whether a person is driving with a blood alcohol concentration above the legal limit.
If you are falsely accused of being the driver and you are either charged with refusing a breath analysis or alternatively with being over the legal limit, then the Police would be required to prove that you are the driver in later court proceedings.
Was the Vehicle being Driven?
A person is guilty of a drink driving offence if such person has the prescribed concentration of alcohol in his/her blood, s/he:
(a) drives a motor vehicle, or
(b) occupies the driving seat of a motor vehicle and attempts to put the motor vehicle in motion.
In the case of a vehicle being driven along the road by a person behind the wheel, there is little issue that the person is DRIVING the vehicle. Doubt is created where it is not clear that the person may have attempted to put the vehicle in motion.
It is not uncommon for a charged driver to say, “yes, I did start the motor, but I was simply putting the air conditioner on as it was hot in the car”. In such circumstances, the police have to prove that the charged person was “attempting to put the vehicle in motion”. Common sense would dictate that simply starting the motor is not necessarily attempting to put the vehicle in motion. It is not uncommon for police to include in their statements that the person was sitting in the driver’s seat, and had his seatbelt on. These factors of course might lend themselves as to what the intention of the person was, nevertheless, the person must “attempt to put the motor vehicle in motion” and unless that can be proved, the charge will fail.
Time – Two Hour Time Limit for Breath Analysis
There are four conditions under which a police officer cannot require a breath test. The first two relate to when a person is injured, which we won’t go into, the second two are as follows. Schedule 3 (2) of the Road Transport Act 2013 states –
A police officer cannot require a person to submit to a test, analysis or assessment, or to provided a sample, under this Schedule:
(a) ……………… or
(b) ……………… or
(c) at any time after the expiration of the relevant period (if any) for the test analysis, assessment or sample concerned, or
(d) at that person’s home.
The relevant period for a breath test or breath analysis is 2 hours from the occurrence of the event by reason of which the officer was entitled under clause 3 (1) to require the person to submit to a breath test.
Once again, in cases of Random Breath Testing, there is no issue, as the time is documented. However in cases where the Police arrive some time later, they have to establish the time that the “Incident” occurred in order to be able to first, breath test the alleged driver and secondly, ensure that the breath analysis at the police station will able to be carried out within 2 hours of that “incident”.
An example might be as follows – Police come across a person sitting in the car sound asleep with the motor running, stopped at the side of the road in the middle of nowhere and a strong smell of alcohol emanating from the vehicle. Clearly the person drove there – but how long has s/he been sitting there asleep. Unless Police can establish when “the occurrence of the event” arose – ie. the time that the person did in fact drive, then they will probably have difficulty in establishing the 2 hour time limit.
Was the Breath Test taken at HOME ?
You will observe that Clause 2(1)(e) of Schedule 3 to the Road Transport Act 2013 precludes police from demanding a breath test of a driver at their home.
This includes the curtilage of the property – ie. any part of the property behind the boundary of such property. It must be YOUR home – not your friend’s home. It is where you reside.
If a defence is raised that the request “was at my home”, then the prosecution have the onus of proving beyond reasonable doubt that the breath test was not required of the accused at his/her home.
Did your blood alcohol concentration INCREASE from the time of breath test to the time of breath analysis. CAN YOUR DRINK DRIVING CHARGE BE REDUCED?
There are numerous cases involving drink driving cases where a person has a short stint of drinking, gets up to leave, slugs down the last half of the schooner and goes out to the car to drive home.
A short time later, (TIME ‘A’ ) the driver is stopped for a random breath test and fails the test. S/he is arrested and taken to the police station and after processing, is asked to give a sample of breath for the purpose of a breath analysis (TIME ‘B’). The reading is taken to be very accurate and is in fact slightly in favour of the person. If a blood test was taken at the same time, it would show be slightly higher.
However, between TIME ‘A’ and TIME ‘B’, your blood alcohol concentration might be on the rise.
Therefore, in cases where you are just over the 0.05, 0.08 or 0.150 limits (low, middle and high range PCA), it may well be the case that at the time of driving your blood alcohol reading was less than the reading obtained, sufficient to put you into a different lesser range, or even below 0.050 and therefore no offence in the case of fully licensed drivers.
It may therefore be of value for you to speak to your lawyer to see whether a pharmacological report should be obtained in an effort to defend the charge.
At Proctor & Associates, we have examined a large number of cases from this perspective, and in every case where a favourable report has been obtained with one of our drink driving defences, we have been successful in reducing our client’s charge to a lesser one.