When charged with drink driving, whether it is special, novice, low, mid, or high range drink driving, it is important to know your rights in defending against the charge.
Drink driving convictions can result in lengthy periods of disqualification, which can cause great difficulties for your work and personal life. Before pleading guilty, which is what the great majority of people do, it is worth taking time to consider whether you have a defence to the charge.
The most common defences are explained below.
Challenging the Reading
Contrary to what many people believe, the reading on a breathalyzer machine can be challenged, and this can sometimes be an effective defense.
During an incident, after a roadside breath test is taken, you will be taken back to the police station for a full breath analysis. It is here that the formal reading is taken, and this is relied upon by the police as official evidence.
However, by then, a significant amount of time will have passed since you were driving.
Your blood-alcohol level may therefore be increasing whilst the police are waiting for you to arrive at the police station. In circumstances where an accident has occurred, it often takes some time for police to arrive to the scene of the accident, then further time for them to take you to the police station. During this time, it may be that your blood-alcohol level has increased significantly.
There are many factors that are taken into account when assessing your likely blood-alcohol reading at the time of your driving, including:
Your age, sex, weight and height
The amount and type of food you ate before driving
The number and type of drink you had
The time passed since you drove
Once it has been determined that you could fall within a category of drink driving that is lower less serious than that with which you have been charged, we will seek the assistance of an expert to determine the approximate reading at the time of driving.
The “Home Safe” Rule
The Home Safe rule protects a driver of a motor vehicle from being subjected to a breath test if they have already arrived home onto their property.
In these circumstances, Police are not permitted to require you to submit to a breath test. If they do, it can be argued that this was not permitted, and that the results are inadmissible in court. If this happened to you, please contact us immediately.
The ‘Two-Hour’ Rule
Police are not permitted to breath test a person more than 2 hours after the accused was driving.
If you do not believe that the breath test took place within two hours of your driving, you should defend the charge on the basis that Police were never permitted to take a breath test in the first place. In this case, it can be argued that this was not permitted, and that the results are inadmissible in court. If this happened to you, please contact us right away.
Honest and Reasonable Mistake
This defence would only realistically be available as a defence in circumstances where the breath test reading was very low (close to the permissible reading level for that class of licence).
For this to be effective, you must prove that you “honestly” believed that you were under the limit. It must also be proved that it was a “reasonable” belief in the opinion of the Magistrate.
For more information on the defence of honest and reasonable mistake, and to see case studies where we have successfully represented others by using this defence, read on here.
You will be surprised how often many of these defences have been successful in having charges dismissed for drink driving offences. You can learn more about defences here.
Call LY Lawyers on 1300 595 299 for more information or speak to one of our drink driving lawyers.