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Random
Breath Tests
Interception
& Preliminary Breath
Tests
Drink
driving offences are usually detected
when a car is pulled over while being
driven along a road, commonly by police
at a preliminary breath test station
(Booze Bus) or by a marked or unmarked
police car on patrol late at night or
in the vicinity of licenced premises.
The driver is required to undergo a
preliminary breath test ("PBT") on a
hand-held breath test device. If the
reading on the PBT is over the driver's
prescribed limit, the police member
will require the driver to go to a
police station or into a booze bus for
an evidentiary breath test on a drager
7110 breath test instrument. The result
from the 7110 device is what is used in
court. It is an offence punishable by a
least 2 years licence loss for the
driver to refuse to undergo any of the
tests or refuse to accompany the police
to the booze bus or police station. The
driver can be required to wait up to
three hours for these tests to be
completed, although it is usually
completed in about 40
minutes.
Police
Interview
In
the booze bus/police station, the
member who conducted the PBT ("the
Informant") will ask the driver about
40 questions and s/he will make a note
of the driver's answers which will be
used against the driver later in court.
These questions can sometimes help the
police prove essential elements of the
offence, or may prevent certain
defences being raised at a later date.
It is an offence to refuse to provide a
sample of breath, but it is your right
to refuse to answer any questions. In
15 years of practice, I have met only
one driver who refused to answer these
questions - and that was probably due
to the degree that he was affected by
drugs and/or alcohol. Driver's are not
obliged to answer any question other
than to state their name and address.
Answering questions can sometimes
eliminate the only defence a driver
has, especially where the police did
not observe the defendant driving a
car. See Your
Rights
for details on the degree of
cooperation you need to give the police
when they intercept you. The police
never warn a driver of these rights,
which perhaps explains why almost no
one ever exercises them.
Any driver who is
on or over the prescribed concentration
of blood alcohol commits an
offence.
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Prescribed
Blood Alcohol Concentration
Limits
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Probationary
Licence holders.
Learner Permit holders.
Drivers not holding any
licence or permit.
Drivers of Trucks (heavy
vehicle licence holders),
taxis, buses, trams,
trains.
Full licence holders for up to
3 years after a Magistrate has
permitted the person to be
relicenced following a drink
driving offence.
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0.00%
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All full
licence holders, other than
those subject to a zero
condition.
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0.05%
0.05
grams of alcohol per 210
litres of exhaled air
(or 0.05 grams of alcohol per
100 millilitres of
blood)
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Breath
Analysis
After
the informant has asked a series of
questions the driver is introduced to
the operator of the breath test
instrument. The operator then asks
another set of very similar pro-forma
questions. Most people willingly answer
all these questions. After about 15
minutes the police require the driver
to provide a sample of breath for
analysis by blowing continuously into
the breath test machine. It is an
offence punishable by a least 2 years
licence loss for the driver to refuse
to provide the sample of breath, unless
there is a good reason for the refusal.
The instrument produces a result on a
printed certificate. A copy is signed
and handed to the driver. The driver is
then free to go. If the result of
analysis is at or more than the
prescribed concentration the driver may
receive an on-the-spot
fine
(for
first time offenders under
0.15%)
or charge
and summons.
Some drivers may also receive a notice
of immediate
licence
suspension
on the spot. A person charged with
drink driving should get legal advice
as soon as possible, particularly if
the police have served a notice of
immediate licence suspension. These
immediate suspensions can be appealed.
Many drink drivers accept the
on-the-spot penalty and do not bother
taking the matter to court. If you want
any hope of keeping your licence you
need to take the matter to
court.
Disputing
the reading
Many
people assume that fighting a drink
driving charge means having to prove
that the breath test result is
incorrect. This is not the case. Most
successful drink driving cases do not
involve challenging the accuracy of the
breath test reading. Defendants are
presumed innocent so there is usually
nothing a driver needs to prove when
defending a case. It is the prosecution
who must prove things in court, not the
defence. The major role of defence
lawyers is to challenge or test the
validity of the prosecution case - not
produce evidence of their
own.
The
law allows a driver to prove the breath
test machine was not properly operated
or not in proper working order. A
driver may be able to prove this with a
blood
test
that shows his/her blood was less than
the legal limit. In most drink driving
cases it is not permitted to adduce
evidence of what the driver had to
drink. i.e. it is not permitted for the
driver to allege that he was sober or
had less than the alleged BAC reading
without the assistance of a blood test.
For that reason, lawyers who know what
they are doing are usually not very
interested in knowing what the driver
had to drink. Such information is
nearly always irrelevant to the proof
of the charge and also irrelevant to
its defence.
The
police do not allow independant testing
of their version of the 7110 breath
test device. When courts have ordered
that it be made available for testing,
the police demand many thousands of
dollars to cover the alleged cost of
them having to recalibrate and
reinstate the machine. This added cost
to already expensive litigation has
detered anyone from taking that step.
If a driver wishes to challenge the
result shown on a breath test device,
the driver should request a blood test
immediately after receiving the
certificate of analysis of breath test
result, or be prepared to spend over
$15,000.00 on the court case.
Fortunately it is not necessary to
dispute the reading to defend a drink
driving charge.
Generally,
a blood test result is useful only if
it will prove that the machine's
reading is wrong. I have never seen a
blood test result that proved the
machine must be wrong. That could be
because not many people get both breath
and blood test results. And it doesn't
mean you shouldn't ask for one. If you
think the machine may be wrong, or you
want to improve the chances of keeping
your licence, then you
should
ask for a blood test. On average,
asking the police for a blood test will
improve your chances of success. An
unhelpful result usually will not make
your situation any worse.
The
police are obliged to facilitate the
taking of the blood test. If the police
discouraged you from getting a blood
test you should seek legal advice. The
driver is required to pay any fees
incurred by the doctor or nurse who
takes their blood - these costs are
usually less than $80. See
"Your
Rights"
for further information about what
drivers can and can't do in breath test
situations.
Defences
to drink driving
Every
drink driving charge can potentially be
succesfully defended. It does not
matter what the reading is or how many
prior convictions you have. It is not
necessary to run a defence case to
successfully defend a drink driving
charge, or any criminal charge for that
matter. The minimum that is required is
a desire to win, a skilled lawyer and
the benefit of the presumption of
innocence. The most common defence to a
motor traffic offence is that the
police fail to prove that they followed
all the proper procedures when
detecting the offence or when
prosecuting the driver.
There
are numerous steps that the police must
take prior to and while conducting a
breath test. These steps need to be
proved in court or the prosecution will
fail. When the police fail to prove
that they have followed the correct
steps, or have fail to prove that they
complied with strict time limits, or
fail to issue, sign, date, file or
serve court papers correctly, then the
prosecution may be unsuccessful. Unless
the prosecution get over those hurdles
the defence is not even asked to start
running a defence case. Most successful
drink driving cases are won before any
defence case commences. So you needn't
give up just because you can't dispute
the reading or you don't think you have
a good defence. See the
Drink
driving FAQ
for more answers to common drink
driving questions.
In
a small minority of cases the driver's
version of events may be relevant.
Sometimes something happens that gives
rise to a positive defence. E.g. the
driver was not driving at the time of
interception (maybe s/he was asleep or
was at home), the police ignored or
abused the driver's rights, the driver
was not tested within 3 hours of
driving, the driver somehow proved s/he
was sober or was not properly served
with a summons. These types defences
often require the driver to give
evidence in court.
Should
you plead guilty or not
guilty?
Consequences
of Pleading Guilty
If
you plead guilty the court may have no
option but to cancel your licence. This
can happen to an exemplary citizen,
even a nun from Calcutta, and even if
it is your first offence in your life.
In drink drive cases where the blood
alcohol content reading is 0.07% or
more (and in some cases where it is
below that reading) the Court has no
power to let you keep your licence. If
the court is obliged to cancel your
licence, the court can not let you keep
driving for work purposes only, or in
daylight hours only. Victoria does not
have daytime driving licences or "drive
for work" licences. See the
Drink
Driving
Penalties
page for licence loss information. You
will get a chance to tell the court
about your personal circumstances, and
you can tell the Court how the loss of
your licence will affect you. The usual
sentencing options in Victoria
are:
(a)
bond with payment to court fund
(without conviction)
(b) fine (with or without conviction
recorded)
(c) community based orders (with or
without conviction recorded)
(d) imprisonment (with a conviction
recorded)
The
court usually imposes a penalty of
between $400.00 and $800.00 for the
average first offence. Most drivers who
go to court and plead guilty will lose
their licence for a minimum period of 6
months. The higher your reading the
longer the disqualification period.
There is no maximum period. A finding
of guilt will be recorded against you
which will make it much more difficult
for you next time you come to court on
a similar charge. (On a second offence
the penalties will double, you will
lose some opportunities to keep your
licence, and you could even go to
prison). In some rare circumstances it
is possible to plead guilty and save
your licence. If your reading is less
than 0.07%, and it is your first
offence in the past ten years, you
could get a bond or a fine without
conviction. In that case you don't have
to lose your licence. Pleading guilty
might be the best thing to do in such a
case. A lawyer can tell you if your
circumstances justify pleading guilty.
When you plead guilty you have to pay
your own legal costs (you should be
able to find a lawyer to handle a plea
of guilty to a traffic offence within
the range $800.00 to $1,200.00). You
might also want to plead guilty if it
looks likely you will lose a fight and
you are at a high risk of being sent to
prison. If you are a repeat offender or
had a serious car accident you increase
the risk of going to prison. You also
have to go through the relicencing
process and many offenders will have an
interlock
condition
imposed on their licence if they seek
to be relicenced.
Consequences
of Pleading Not Guilty
If
you plead not guilty, your case will be
listed for a contested hearing many
months after you are served with the
court papers. If you change your mind,
you can always change your plea.
If
you plead not guilty and lose, you
are in the same boat as someone who
pleaded guilty, except for a few minor
differences. First, you might suffer a
slight increase in the financial
penalty. Second, you will have more
difficulty convincing the court to give
you a bond or fine without conviction -
but they were unlikely to give you that
if you pleaded guilty anyway. Third,
your legal costs are likely to be
higher (by how much depends on how your
defence is run and which witnesses are
required). You legal bill will be
between a few hundred dollars to a few
thousand dollars above what it would
have cost to be represented on a plea
of guilty. Finally, the court can order
you to pay loss of wages if any
civilian witness is required to come to
court to give evidence against
you.
If
you plead not guilty and win, you
will save your licence. You won't get a
conviction or a "prior" on your
criminal record. You will probably get
most of your legal costs paid by the
police, and you will not have to pay
any fines. You will probably learn from
the experience which will have the
potential to put you off alcohol
forever. If you have been involved in
an accident, you may find it essential
to win your drink driving case before
the insurance company will honour the
contract of insurance on your
vehicle.
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Comparing
Outcomes for Drink
Driving
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Typical
Outcomes
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Plead
Guilty
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Plead
not guilty
and lose
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Plead
not guilty
and win
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Drivers
Licence
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Usually
licence cancelled for
mandatory minimum period of at
least 6 months. You may need
to apply to a court to be
relicenced and have an
interlock installed.
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Usually
licence cancelled for
mandatory minimum period of at
least 6 months. You may need
to apply to a court to be
relicenced and have an
interlock installed.
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Licence
not affected.
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Fines
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First
Offence: approx $300.00 to
$800.00. Repeat offenders get
bigger fines and possibly
gaol.
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First
Offence: approx $300.00 to
$800.00. Repeat offenders get
bigger fines and possibly
gaol.
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No
fines. No Gaol.
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Legal
costs
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$800.00
to $1,400.00
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$2,000.00
to $4,500.00
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Police
pay legal costs.
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Criminal
Record
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Prior
offence recorded (usually with
a conviction).
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Prior
offence recorded (usually with
a conviction).
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No
criminal record.
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See Drink
Driving
Penalties
for more detail on possible
outcomes.
If
you examine the alternatives above, you
can see that the only advantage of
pleading guilty is that your legal bill
will be lower than if you plead not
guilty AND LOSE. You have to decide
whether the risk of losing the money is
more important to you than a chance to
keep your licence and avoid fines and a
criminal record. It is not in your
interests to plead guilty to a drink
driving charge until an experienced
lawyer (i.e. one who knows how to fight
a drink drive charge, not a lazy one
who spends his life pleading guilty to
everything) advises you otherwise.
How
to avoid drink driving convictions
without legal assistance
- If you
drink, don't drive.
- Drink
light beer.
- Ride a
bike - saves petrol, no speeding
fines, you can't be breath tested
and you might get fit.
- Buy a
personal breathalyser.
- Learn how
to measure
your
BAC
and count your drinks.
- Drink
water or non-alcoholic drinks in
between alcoholic
drinks.
- Avoid
driving if people keep topping up
your glass or shouting you
drinks.
- Drink
water only for at least one hour
before you begin
driving.
- After
drinking, let others do the driving
or take public
transport.
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