If you’ve been charged with drink driving, it’s not a situation that should be taken lightly. Even if its only your first offence, drink driving charges can often result in a criminal conviction as well as fines and the disqualification of your driver’s licence.
More serious cases of drink driving can even result in imprisonment, depending on the severity of the circumstances. Because of the many deaths caused by drink driving, the Australian legal system takes a very harsh approach to offenders in order to deter the behaviour in others.
Is it possible to fight a drink driving charge?
Yes – while most people end up pleading guilty to drink driving offences, there are several situations where it is possible to successfully defend against these types of charges. The following will look at some ways that you, with the assistance of an experienced lawyer, can fight against drink driving charges.
The police will most likely bring a PCA (prescribed concentration of alcohol) charge against you which references the scientific reading the police gathered from a breathalyser test. This is easier for the police to argue than a DUI (driving under the influence) charge because they only need to prove that you were driving over the legal limit, not that you were noticeably under the influence of alcohol.
Challenging the PCA reading
Challenging the PCA reading is difficult but possible under certain circumstances. Basically, the breath test you are given at the roadside is prone to error and can’t be used to lay a charge against you, which is why you are brought back to the police station or a ‘booze bus’ for a more thorough test that’s considered highly accurate.
In the time between getting tested in your car, being arrested and then sitting in front of a breath analysis machine, your alcohol blood level can fluctuate. This means that it is possible for you to read higher at the police station or booze bus than you did at the side of the road, opening up the argument that you were not over the limit while operating your vehicle.
A pharmacologist can consider all the biological factors at play and determine a likely reading at the time of driving. Your lawyer may use this type of expert in court to prove beyond reasonable doubt that you were not driving over the legal limit and therefore the PCA charge is not admissible.
As you can imagine, this type of defence is highly circumstantial and should only be pursued if your lawyer recommends it. At Gryphon Lawyers, we can advise you as to whether or not this defence is viable for you.
You made an honest and reasonable mistake
In the past, people learning how to drive on their L plates were told by the RTA (now the RMS) that men could have 2 standard drinks in the first hour, then 1 drink each hour after, and women 1 drink each hour, and still be able to stay under the limit. This has since been proven to be unreliable information and is no longer told to people, however many drivers still go by this rule of thumb.
In certain circumstances, it is possible to argue that you made an honest mistake in thinking that it was okay for you to have one drink and then drive home later. Normally it is older Australians who drove for many years under the old rule of thumb who can make this ‘honest mistake’ argument. Younger drivers are expected to know that this rule of thumb is no longer endorsed by authorities, even if they were taught it by someone they know.
‘Home safe’ rule
The ‘home safe’ rule means that police are not legally empowered to demand a breath test from you while you are at your home. Breath tests obtained while you were considered to be ‘home safe’ can be dismissed as evidence against you.
However, some circumstances can make proving at what point you are considered to be ‘home’ difficult. If you live in a block of units and park on the street, police may argue that you were not ‘home safe’ in the same way someone parking in their driveway would be.
Breath tests taken 2 or more hours after you drove a car can be dismissed as evidence you were operating a vehicle over the legal alcohol limit. This defence is rarely seen since police almost always stay within the 2-hour rule, (they test you in your vehicle or right after getting out) but has been used in cases of accidents where police took more than 2 hours to respond to the scene.
How likely is it I can use one of these defences?
The only way to know for sure if any of these defences is viable for you is to speak to an experienced drink driving lawyer. If you are facing a drink driving charge and want to know more about your options, don’t hesitate to call Gryphon Lawyers on (02) 4656 1834 or contact us online today!