Being charged with drink driving in Australia is a serious matter with long-lasting effects on your livelihood, reputation, and personal freedom. Every year, thousands of drivers are penalized with fines, disqualifications, or imprisonment depending on the seriousness of the offense.
For many of these individuals, it will be their first time facing the criminal justice system, and it can be overwhelming to not only have to attend court but also to comprehend the allegations and what can happen going forward.
While the law regarding drink driving is strict and strictly enforced, sometimes there are grounds for defences against drink driving. In some situations, you may be capable of defending the charges against you. The law understands that not every case is that simple and that courts must consider the evidence, the circumstances of the incident, and whether the prosecution has established its burden of proof.
It is vital that if you receive a drink driving charge, you understand the potential legal defences to drink driving charges. If you find yourself in this situation, make sure you obtain proper professional legal advice. You may wish to speak to Penrith Criminal Defence for case-specific legal advice.
Drink-driving laws in Australia
These laws are regulated, largely, by state and territory law, so that each jurisdiction has its own drink driving rules and penalties associated with its laws. But there is a considerable degree of similarity across Australia, given that all states pursue a strict policy with regard to alcohol related driving offenses.
For instance, the principal legislative instrument in New South Wales is the Road Transport Act 2013 (NSW), and similar laws exist in other states and territories, such as the Road Safety Act 1986 (VIC) (in Victoria) and the Transport Operations (Road Use Management) Act 1995 (QLD) (in Queensland).
Under the laws, the offences are generally classified according to blood alcohol concentration (BAC)
- Novice, special, and learner drivers are expected to have a zero BAC.
- The general limit is 0.05.
- Higher penalties are provided for middle-range (0.08 to 0.149) and high-range drink driving (0.15 and above).
The penalties for drink driving vary according to the BAC reading, history of offending, and aggravating factors (party in the vehicle, level of intoxication, etc.). Together, these could include license disqualification, significant fines, confiscation of a motor vehicle(s), obligation to fit an interlock device, imprisonment, or more.
The severity of the penalties means that a solid legal defence might be the difference between being convicted or acquitted.
The Responsibility of Proof in Driving Under the Influence Charges
Before discussing specific defenses, it is crucial to observe how the law imposes responsibility on the prosecution. In criminal law, the prosecution must prove the offence beyond a reasonable doubt. This does not differ in the situation of driving under the influence charges.
To establish a conviction, the prosecution must prove the following:
- The accused was indeed driving or in charge of a vehicle.
- The accused had a Blood Alcohol Content (BAC) higher than the prescribed limit at the time.
- The prosecution’s case may be vulnerable if there are any weaknesses in evidence, errors in the law, or attempts to satisfy statutory requirements.
Honest and Reasonable Mistake of Fact
One of the recognized legal defenses is the defense of honest and reasonable mistake of fact. This principle is broadly articulated in case law such as Proudman v Dayman (1941) 67 CLR 536. The High Court of Australia established a definition of honest and reasonable mistake of fact, where a person may escape from liability for the commission of an offence if they honestly and reasonably believed in a set of circumstances that, if true, would have made their conduct innocent.
Concerning drink driving, it may arise where a person genuinely believed they were within the legal limit. Rationally, this is possible; suppose a person decided to drink alcohol and consumed an amount, then they consult with a chart developed by medical experts for such a situation, or only had two drinks and reasonably waited a significant or agreed period, and believed they were safe to drive, they could reasonably ascribe to themselves a belief that they were safe to drive. But this defence is notoriously difficult to establish in drink driving matters, as courts have generally accepted that people assume the risk when drinking alcohol.
The High Court in Jiminez v The Queen (1992) 173 CLR 572 has strongly expressed the position that a mistake of law is not a defence. While it is possible to establish, even on the balance of probabilities and in the right circumstance, a defence may be available, however, there are very few occasions that are established, and when it is, we can say that there is usually better evidence.
The Two-Hour Rule
Most Australian jurisdictions, including New South Wales, have statutory provisions commonly referred to as the “two-hour rule”, that a police officer to take a breath or blood sample within 2 fixed hours of the alleged drive, found in section 109 of the Road Transport Act 2013 (NSW).
If the testing happens more than two hours later, then the result may not be accepted in a court. This is because BAC can change over time, and someone may not truly have that BAC when driving if the test occurred well after the driving time ended. An example case of delayed breath analysis admissibility concern is the case of Director of Public Prosecutions v King (2010) NSWSC 253. Reliance on a successful defence in a case with delayed breath reading will often depend on the timing of the test and whether the police followed proper protocol.
Not in Charge of the Vehicle
To convict a person of drink driving, the prosecution must prove that the defendant was driving or “in charge” of a motor vehicle. The meaning of “in charge” has a broad meaning and often has been given quite a bit of case law context.
The person sitting in the driver’s seat of a stationary vehicle with the keys in the ignition may be considered “in charge” of the vehicle, even if the person had no intention of driving the vehicle. However, if the accused is able to show that they had no intention of driving the vehicle and either made an attempt to ascertain that they did not or would do so, then they may have a defence to police claims they were “in charge” of the vehicle in question.
In NSW, in the case of R v Butler (2001) NSWCCA 13, the court recognized that a person who is resting in their car without any intention of driving may argue that they were not “in charge”. All decisions turn on their own fact, and each case can involve factual considerations such as whether the engine was running, where the accused was situated in the car, and the accessibility of the car keys.
Improper Police Procedure
There are strict procedural requirements around how police must administer breath tests and how to record evidence. Any departure from those procedures may cause evidence to be unreliable and can form the basis of a defence.
- No checking or maintaining breath-testing devices.
- Not thoroughly observing statutory safeguards, such as advising the accused of their rights.
- Lack of proper analysis of breath samples or management of blood samples.
In R v Ireland (1970) 126 CLR 321, the High Court recognised how important compliance with procedures was in regard to police conducting criminal investigations. If police fail to meet their statutory obligations, then evidence can be excluded. This defence will also include an examination of the police’s procedures, evidence, and documenting what occurred, and whether the testing device complied with the legislative requirements at the time it was used.
Medical Conditions and Substances
Some medical conditions or substances can produce readings that appear to show alcohol intoxication or interfere with the reading of the breath testing devices. Medical conditions like diabetes or gastroesophageal reflux disease, or recent usage of certain medications, can cause “false positive” results. For example, the presence of ketones in the bloodstream from diabetes can yield readings that some devices cannot differentiate from alcohol. In these situations, you usually need expert medical evidence to back up this defence. The court needs to be satisfied that the medical condition impacted the reading.
This kind of defence highlights the significance of seeking medical advice and having expert witnesses on file, where appropriate.
Duress and Necessity
Though rare, it is possible to argue that a person drove while `over the limit` due to duress or necessity. Duress involves circumstances where an individual was compelled to drive due to threats of serious harm. Necessity arises where a person drives while intoxicated in order to avoid a greater harm, for example, someone in medical distress.
Courts have rigorous tests for this type of defence. In R v Loughnan (1981) VR 443, the court discussed the elements of necessity and indicated that there must be proportionality between the threat and the unlawful act.
Although it is difficult to prove, these defences offer some promise if there is damning evidence of an emergency or circumstances of duress, intoxication, or unconsciousness.
Blood Alcohol Concentration (BAC) Defence
The phrase “rising BAC” refers to the scientific concept that alcohol levels in the body continue to rise for a period of time after drinking ceases. A driver may have started their trip with a BAC under the legal limit, but by the time they were tested, they might have tested over the limit.
The courts have acknowledged this issue, and defence lawyers sometimes call an expert witness to discuss the science of alcohol absorption. The success of the defence relies on determining when the drinking occurred in relation to the driving and testing phase.
Admittedly, in practice, a jurisdiction will hear the defence where there is evidence to suggest the accused person consumed alcohol immediately before driving, but within a short time after having been stopped, they were tested.
Practical Implications for Individuals Charged with Drink Driving
The fact that an individual may have a viable legal defence does not mean that they, in fact, will succeed. It all depends substantially on the particular facts or circumstances of the case, the quality of the evidence, and the ability to challenge the prosecution’s version of events.
Although there may not be a full defense, raising doubt about some elements of the prosecution’s case may lead to a charge reduction or lesser punishment. For instance, questioning the accuracy of the BAC reading or the officer’s actions may convince the prosecution to accept a lesser plea.
It is also very important to recognize that courts have discretion with respect to sentencing. Mitigating factors such as good character, no previous drinking and driving history, and any rehabilitation evidence may impact the outcome. Having a legal representative assist with these factors is essential to ensure they are presented appropriately.
The Need for a Lawyer
Drink driving offenses seem simple, but, under scrutiny, have several legal and technical aspects that can become very complicated. The police statement, breathalyzer technology, medical information, and statutory procedures all provide possible grounds for defence.
When you don’t have representation, you may miss a vital defense that could have been identified, or you may not challenge swayed or unreliable evidence. An experienced designated criminologist can identify weaknesses in the prosecution’s case, provide plea options, and make sure your rights are maintained throughout the process.
Considering what is at stake if you are convicted—loss of your venue and custodial detention, the importance of expert advice is evident.
Final Thoughts
Drink driving offenses are one of the most common offenses in Australia, but they should never be underestimated. This law offers various protections ranging from admissibility of proof to raising specific circumstances and the rise or necessity of rise in blood alcohol concentration.
Every matter is different, and outcomes depend upon the factual circumstances, quality of evidence, and legal arguments advanced. If you are having such charges, you must understand your rights and look for proper legal advice. If you would like assistance in your circumstances, you may want to contact Penrith Criminal Defence for personalized legal advice on your matter.
Also Read: Why you Need a Criminal Defence Lawyer
