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 Drink driving defence lawyer, Victoria.

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 usually required to undergo a preliminary breath test ("PBT") on a hand-held breath test device. The driver has an obligation to provide a sample of breath when requested.  If the reading on the PBT indicates alcohol in the driver's breath, the police member can require the driver to go to a police station or into a booze bus for an evidentiary breath test on an approved breath analysing instrument. The police will not tell you the result of the PBT because the result is irrelevant. The result from the evidentiary breath test is what is used in court. Usually an offence is committed if a person refuses 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 20 years of drfrnding drink drivers, I have met only a couple of drivers who refused to answer these questions - and that was probably due to beingso affected by 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 alcohol commits an offence.

Prescribed Breath Alcohol Concentration Limits

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.


All full licence holders, other than those subject to a zero condition.

0.05 grams of alcohol per 210 litres of exhaled air
(or 0.05 grams of alcohol per 100 millilitres of blood)



Breath Analysis

After the informant has asked you a series of questions he will introduce 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.  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. Most 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 presumes the breath test result to be correct. The accused carries the burden of proving the breath test result is wrong. It is a defence for the accused to prove that the breath test machine was not properly operated or not in proper working order. A driver may be able to do this by getting a blood test that demonstrates that his/her blood alcohol concentration was actually below the legal limit at the time of the breath test. It is practically impossible to prove that a breath testing device is not functioning properly without getting a blood sample taken within an hour or two of the breath test, and then have the result of the blood test demonstrate that the breath test result must be wrong and that the machine must have made an error. There are many ways to win drink driving cases but unless you have a blood test that shows the breath test result is impossible, then you will never satisfy a court that the breath analysing instrument produced an incorrect result.

In most drink driving cases it is not permitted for the driver to adduce evidence of how much alcohol he/she drank prior to, or even after, driving. i.e. it is generally not permitted for the driver to claim that he/she was sober or had less than the alleged BAC reading without the assistance of a blood test. The only exception to that is in some rare cases drivers may be able to prove that all of the alcohol in their blood was consumed after they stopped driving their vehicle. For that reason, lawyers who know what they are doing are usually not interested in asking what the driver had to drink. Such information is nearly always irrelevant to the prosecution of the charge and also irrelevant to its defence.

The police do not allow independant testing of their version of the Drager 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 service the machine, recalibrate it and reinstate the machine's software. 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 challenge the breath test reading to be acquitted of 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. 

Obtaining your own blood test result is extremely unlikely to increase your chances of being acquitted.  I have won a couple of hundred drink driving cases but I have never won a case because my client got a blood sample that differed from the breath test. Blood test results always differ from breath test results, but that does not mean they are inconsistent with each other.


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 might 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 correct orders (with or without conviction recorded)
(d) imprisonment (with a conviction recorded)

The court usually imposes a penalty of between $500.00 and $1,000.00 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 drink driving offence within the range $1,000.00 to $1,600.00). 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.


Comparing Outcomes for Drink Driving
Typical Outcomes
Plead Guilty
Plead not guilty
and lose
Plead not guilty
and win
Drivers Licence

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.

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.

Licence not affected.


First Offence: approx $500.00 to $1,000.00. Repeat offenders get bigger fines and possibly gaol.

First Offence: approx $500.00 to $1,000.00. Repeat offenders get bigger fines and possibly gaol.

No fines. No Gaol.

Legal costs

$1,000.00 to $1,500.00

$3,000.00 to $5,000.00

Police often pay legal costs.

Criminal Record

Prior offence recorded (usually with a conviction).

Prior offence recorded (usually with a conviction).

No criminal record.

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

  1. If you drink, don't drive.
  2. Drink light beer.
  3. Ride a bike - saves petrol, no speeding fines, you can't be breath tested and you might get fit.
  4. Buy a personal breathalyser.
  5. Learn how to measure your BAC and count your drinks.
  6. Drink water or non-alcoholic drinks in between alcoholic drinks.
  7. Don't drive if people keep topping up your glass or shouting you drinks.
  8. Drink water alone for at least one hour before you begin driving.
  9. If drinking, let others do the driving or take public transport.


Related Pages:

Court Process
Drink Driving FAQ
Drink Driving Penalties
Immediate Licence Suspensions
Relicensing process

Related Links:

VicRoads Drink Driving page




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