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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 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.
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Prescribed
Breath 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 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.
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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 $500.00 to
$1,000.00. Repeat
offenders get bigger fines
and possibly gaol.
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First
Offence: approx $500.00 to
$1,000.00. 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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$1,000.00
to $1,500.00
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$3,000.00
to $5,000.00
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Police
often 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.
- Don't drive if
people keep topping up your glass or
shouting you drinks.
- Drink water
alone for at least one hour before
you begin driving.
- If drinking,
let others do the driving or take
public transport.
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