Frequently
Asked Questions
in Drink Driving Cases
If I plead guilty, can the court let
me keep my licence?
Generally not. See the Penalties page for exceptions to
this.
I
got caught drink driving. Can you save my licence?
Most
of my clients are facing drink driving charges, and many of them keep
their licence. You should come and see me once you have your
court papers and then I will be able to tell you how likely it is that
I can save your licence.
My drink driving infringement notice
says I will lose my licence for 13 months. What should I do if I want
to save my licence?
Your only option is to defend the case
successfully in court. You do this by objecting
to the infringement notice and then making an appointment to
see me once you have your court papers. See: Conferences.
Is my drink driving case winnable?
Every case has a chance of winning. Many cases
are easy to win while others are far more difficult. Much depends on
what the police will say and do in the court proceeding.
Can the Magistrate take into account
my personal circumstances, including my excellent driving history, to
reduce the mandatory minimum licence loss period?
That's absolutely impossible. It is a mandatory
minimum period, not a discretionary minimum period. See the Penalties page.
What if I offer to pay a $6,000 fine,
do 500 hours of community work and undertake not to commit any further
offence for 15 years?
Impossible. There are only two alternatives if
you are facing mandatory licence loss. Win your case or lose your
licence.
Can I get a drive-to-work licence or
daytime hours licence?
Such licences do not exist. See the Penalties page.
Should I object to my infringement
notice to take the matter to court?
If you need to save your licence from
cancellation, you must object to the infringement notice and take it to
court. Read the Fines page.
Will I lose my licence for a longer
period if I take the matter to court?
In nearly all cases the licence loss period
will not get worse if you take it to court.
What are my chances of winning in
court? what_are_my_chances_of_winning
It depends on the state of the paperwork and
the police evidence. It usually does not depend on the your version of
events, and it almost never depends on what you drank. If you had an
accident, or had a blood sample taken, or you refused to cooperate with
the police then your chance of winning will actually improve. No lawyer
who knows how to win a drink driving case can possibly answer this
question without seeing your charge and summons and the police
statements. See the legal advice page.
Will having prior convictions for
drink driving make it harder to win my case?
No. It is totally irrelevant what your driving
history is.
Will having a very high reading make
it harder to win my case?
No, the magnitude of your reading is usually
irrelevant. Statistically, the higher your reading is the greater
chance you have of being acquitted because it is less likely you were
tested at a booze bus.
I believe my breath test result was
incorrect. What can I do to challenge the reading?
You
need to ask for a blood test immediately after you receive your breath
test result. You will find it very difficult to challenge the reading
unless you asked for a blood test. Don't dismay though, I usually win
drink driving cases without needing to challenge the reading.
I had only two light beers before
driving and am sure I was under 0.05%. Can I use this evidence in my
defence?
Not unless your blood test result backs you up
on that.
I had 4 drinks at home after I
finished driving. Can I use this to reduce my reading?
Generally not. The court can not take into
account any evidence about what you drank after you finished driving
unless you have witnesses who can prove you were stone sober when you
were driving.
I think the breath test result came
from my mouth-wash. Is this a good defence?
No. It does not matter what caused the alcohol
to be in your breath.
My reading was high because I did not
eat any food all day. Will this help?
No. Your reading was high because you drank too
much alcohol. The state of your digestion or health or drug use has
nothing to do with the prosecution of the charge nor with any defence
(unless you are so sick you can not provide a sample of breath).
Do I need to prove I was under 0.05%
to win my case?
No. That is the last thing you should worry
about. The laws in Victoria make it almost impossible for anyone to win
a drink driving case by trying to show they were under 0.05% at the
time of driving. Not to worry though, there are many other ways to win
a drink driving case.
After I lodge an objection to an
infringement notice, what happens next?
Within about 2 or 3 months the police will
serve a charge and summons on you which sets an initial court date. It
can sometimes take up to 12 months to get court papers.
How long after I get the court papers
will the case be heard?
If you want to fight the case, it will not be
heard for about 4 to 12 months after the initial court date. If you
want to plead guilty, it can be determined any time you wish.
Which court will the case be heard in?
The case will be heard in the Magistrates Court
closest to where the offence occured. It is not possible to
change courts if you are pleading not guilty.
When should I have a conference with
you to get the case started?
Generally, you should seek advice as soon as
you get the court papers or as soon as your licence is suspended. If
you are particularly desperate and want everything checked no matter
what the cost, then you might also seek legal advice before you lodge a
notice of objection to an infringement notice.
What does it cost to fight a drink
driving case?
Roughly $4,000.00 (plus or minus $1,500)
depending on what is involved. If the case does not proceed all the way
to a final hearing it usually costs less. If you win, the police
usually pay those costs. If you decide not to fight the case, the cost
will be much less.
What will happen to my licence if I am
found guilty?
Generally your licence is cancelled and you
will be disqualified from driving for a lenghty period depending on the
severity of your offending. See the Penalties page.
I am happy to plead guilty. Do I need
a lawyer?
If it is a simple booze bus offence you
probably won't need a lawyer to help you plead guilty, provided you had
a licence and you have no more than 1 prior drink driving
offence. If you use a lawyer, you are far less likely to be
disappointed with the outcome or want to lodge an appeal. Legal
representation can help keep your licence disqualification period and
fines low, and ensure you avoid any term of imprisonment or community
work order. I represent people who wish to plead guilty or not
guilty.
What do you charge to represent me on
a plea of guilty to a drink driving charge?
My fees fall between $750 and $1,300 depending
on the nature of the case. Some drink drivers have been charged with
other offences, such as driving whilst suspended, careless driving or
dangerous driving, and this can make the case more complicated and more
expensive. See:
Pleading
Guilty
Is it difficult to get my licence back
at the end of the disqualification period?
Depends on the severity of your offending, but
you should assume it is going to be a large pain in the neck to get
relicenced. See the Relicencing page.
Will I need to have an Interlock if I
am relicenced?
Depends on the severity of your offending. See
the Interlock page.
How do you win a drink driving case?
There are dozens of ways of winning traffic
cases. See the cases page for examples. The best
thing you can do is see an experienced defence lawyer. Any lawyer who
tells you that you can not win your case is merely confessing they have
no idea how to win a traffic case. Find a better lawyer.
I am sure I don't have any defence.
Aren't I wasting my time?
Unless you are an experienced criminal trial
lawyer (or perhaps a police prosecutor), you will not recognise a
defence even if it is staring you in the face. In any event, it is not
necessary to have a defence to be acquitted of criminal charges - you
are innocent until proven guilty. The outcome often depends on what the
police say in court. Read this case example and this one. See also the Legal Advice page. There are
regularly defendants who can not see a defence yet still contest their
case and win. They do not feel they have wasted their time. You need to
decide if you want to invest your time and money in taking the chance.
People who are prepared to risk their life and licence by driving after
drinking should have no fear in taking the risk of defending their case
in court.
What should I say to the court in my
defence?
Preferably nothing at all. In most criminal
cases the defendant does not give evidence so you can stop wondering
what you might have to say in court.
I paid my drink driving fine and lost
my licence for 14 months. I am about to have a baby so I need my
licence back desperately. Can I ask the court to reduce the time of
disqualification?
No. If you do not object to the fine within 28
days your case is closed. If you pay the fine your case is closed. By
paying the fine you are admitting guilt. A mandatory minimum period can
never be reduced if you are guilty. No court can ever impose a sentence
that is less than the mandatory minimum sentence.
I have been waiting 3 months for the
police to send me a charge and summons. Should I call them and ask them
where my papers are?
No. Just wait. After 12 months seek legal
advice.
Can I apply for Legal Aid?
You
can apply but it is unlikely to be granted unless you are at risk of
imprisonment and you satisfy their means test and other conditions
(e.g. intend to plead guilty). Occasionally I refer clients to Legal
Aid and I might act for them if they are granted aid. Legal Aid does
not often fund traffic law matters, especially defended traffic law
matters. Legal Aid does not have sufficient funding to pay barristers
to fight technical defences to drink driving cases. Legal Aid in-house
lawyers are not renown for defending traffic cases. Some people may
have an insurance policy that covers them for some legal expenses in
traffic matters. RACV's Total Care cover pays about $350.00 for legal
expenses in traffic prosecutions.
The police have asked me to go to the
police station for an interview. What should I do?
Don't go, or don't undergo an interview, unless
your lawyer tells you to do so.
drink
driving legal advice for victorians Drink driving fines in victoria
Related Pages:
Breath Tests
Fines
Court Process
Relicencing applications
Interlock conditions
Immediate Licence
Suspensions
Drink Driving Online
Forum
Sean Hardy is a drink driving lawyer who specialises in defending and winning drink driving charges in court.
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