What if i am detected for drink driving? What our the penalties?
There are very few lawyers who specialise in drink driving related matters. South Australian Traffic laws are constantly changing and as Criminal and Traffic Law experts we pride ourselves on our up-to-date knowledge. There are a number of different offences created by the legislation. Commonly, people believe that they have been charged with driving under the influence (DUI) when in fact they have been charged with exceeding the prescribed concentration of alcohol (PCA).
In addition, the consequences of a drink driving offence might be significant for many people who rely upon their licence to work.
If you are charged with exceeding the PCA a number of different consequences may occur. Penalties have been increasing significantly. Even if you are a first offender on a full licence and have a reading greater than .05%, then you will face a mandatory loss of licence for at least 3 months. If your reading is greater than .08%, then you are liable to be disqualified from holding or obtaining a driver’s licence for at least 6 months. If your reading is greater than .15%, then you face a loss of licence for at least 12 months.
These are minimum penalties only. You are likely to receive an immediate notice of disqualification from the police. Later, you will receive a summons from the police. When you go to court, the court can impose a loss of licence far greater than the minimum stated in the notice. If your offending is combined with other offences, or aggravated by other means, (i.e. an accident or high speed) then you should expect an increase from the minimum. Likewise, if your reading is toward the higher end of a category, then you may receive an increase in penalty. We can assist you in presenting your personal situation to the court with a view to reducing the period of disqualification you might otherwise face. In addition, after your licence is cancelled there are many occasions where you will have to participate in the alcohol interlock scheme before graduating onto a full licence.
The drink driving laws are some of the most complex and technical of all of the laws and very few firms have specialist drink driving lawyers.
We acknowledge that many people who are stopped for drink driving are ordinary nice people who have simply made a miscalculation and are not some heinous criminal as some would have us believe. We understand that the consequences of a conviction might result in a loss of job with significant financial repercussions.
If you are stopped for a drink driving offence then obviously you are not requested to blow in the breath analysis machine (not the screening test) until much later. Imagine the difficulty the police would have in trying to prove what your reading was at an earlier time without knowing how quickly your body eliminates alcohol and what your drinking pattern had been on the occasion in question. The police would be forced to call a qualified doctor in every case to attempt a back calculation. The cost would be great and the task difficult, so the government decided to take your rights away and create a legal fallacy. That fallacy allows the police to presume that your breath analysis reading remains constant for two hours prior to the breath analysis. The police can then rely upon this presumption to prove that your reading, taken when you blew into the machine, also existed at the time of driving. The trade off for allowing the police to rely upon this legal fallacy is to ensure that the police strictly comply with a number of prerequisites before allowing them to do so.
We at Woods & Co Lawyers pride ourselves on our knowledge and expertise of SA Traffic Law. At your appointment, we will go through all of your documentation and ask you lots of odd questions in order to ensure that the police can prove the case against you. Given the consequences that follow for many people, it is a small investment that we believe is worthwhile.
We have successfully defended many people for drink driving offences. We are located in central Adelaide and are highly regarded in South Australia in the field of Traffic Law. We will be able to advise you how best to deal with your matter and whether or not you should plead guilty.
If after providing you with advice it is likely that you have to plead guilty, we may still be able to assist you with having the licence disqualification reduced significantly from that which you may achieve if unrepresented.
In addition, some people simply just can’t face the thought of appearing in court and telling the magistrate what happened and why they need their licence. We do that every day and can assist you. Sometimes, you don’t even need to come to court if you engage our firm to represent you.
To commit the offence of PCA, you must drive a motor vehicle on a road while having present a blood alcohol reading exceeding the prescribed concentration of alcohol. Your blood alcohol concentration is calculated by submitting to a breath test designed to draw air from your lungs. A conversion then occurs to relate the breath test to a blood alcohol reading. The law is not concerned with your ability to drive, or how affected you appeared. It is only concerned as to whether you drove while over the limit.
However, if you are charged with DUI, then the police must prove that you drove a vehicle on a road, or attempted to do so, whilst so much under the influence of alcohol and/or drugs that you could not exercise effective control of your vehicle. Police usually rely upon observations that support faculty impairment such as slurred speech, being unsteady on your feet, bloodshot eyes, slow body movements and poor driving, etc. The offence of DUI carries a minimum loss of licence for at least 12 months for a first offence and 3 years for a second offence. Imprisonment is an option but is not common for this offence unless you have prior convictions.
If you refuse or fail a breath test or reasonable direction of a police officer in respect of the breath analysis procedure the same penalties as DUI normally apply, irrespective of whether you had been drinking or not. You can only rely upon a medical reason for refusing if you submitted to a blood test. In addition, before the police can prove this charge they have to give you a prescribed warning about the consequences and then give you another opportunity to comply.
In all cases above there are also significant fines that are imposed if you are found guilty of PCA, DUI or refusing/failing a breath analysis.
Firstly, it is important you try to remember what was said and done while everything is fresh in your mind. Please remember to make some notes as soon as possible after the event. If you have a witness to the event or part of it, then ask them to do the same. Please remember conversations about your blood rights as these may become important.
Secondly, keep all of your documentation and bring it along to your appointment with one of our solicitors. Sometimes an error on the paperwork given to you can result in you being found not guilty of the charge.
It is common for you to receive an on-the-spot disqualification if detected for many drink driving offences. If you have reasonable prospects of successfully defending the charge or having the penalty reduced, then we can make application to have the disqualification set aside until your matter has been properly considered and heard in court.
In our view, the current on-the-spot disqualification system contradicts many of our pillars of justice that have survived for centuries. It beggars belief that we can allow a system to punish you (by the police not even the judiciary) without an admission or finding of guilt. There has also been in our view an attack on the right to silence (you now have to tell them your defence before the disqualification is lifted) and a reversal of the onus of proof (you are presumed guilty unless you can show you have a defence). Yet we hardly heard a squeak from our media or anyone about this. Still in these populist political times we should not expect much else. We wonder where this will spread to next. (It’s a bit like random breath testing stations, which originally had to be authorised by the Commissioner of Police. Then it was extended to allow police to stop you during school holidays and prescribed periods. Now it is a free for all. Police can now pull you over at any time and make you wait for an alcohol test and even longer for a breath analysis test in some circumstances).
The police are also obliged to commence proceedings within a ‘reasonable time’ after serving you with an on the spot disqualification. The Magistrates Court Rules provide that a ‘reasonable time’ is 7 days. In our experience, very few proceedings are commenced within that time frame. Some people are ending up having already served the period of disqualification, under the immediate notice, only to find they have more disqualification to serve at a later time.
We continue to make no apologies for standing up for our client’s rights and trying our best to ensure we protect your rights. However, as any responsible citizen we support the motto “Don’t drink drive, and stay alive.”
If you have a prior conviction for a drink driving related offence, then the penalties are harsh indeed. In some cases, your driver’s licence can be cancelled for a minimum period of 3 years or until further order.
The above relates only to those people who hold a full drivers licence. Different criteria apply to those who hold a provisional, or probationary licence, or learner’s permit. Different criteria also apply to those carrying passengers such as taxi drivers and bus drivers.
It is important to remember that the above licence disqualifications cannot be reduced unless your offence is a first offence and it is considered to be ‘trifling’. A special legal definition applies to the term ‘trifling’. Please enquire with us if there is something unusual or atypical about your matter. Reduced penalties also apply if you can show that you consumed alcohol after the time of driving, but before being tested by the police, but these cases are rare and there are many exceptions. Further, you cannot get a licence to drive during your employment or during other specified circumstances.
Call our friendly team on 08 8311 3111 to help you
“Leaders In Traffic Law In Adelaide”