High Range Drink Driving – Not Guilty

Charge: High Range Drink Driving (NSW), pursuant to section 110(5) of the Road Transport Act 2013.

Penalties: At the time of the offence, the maximum penalties for this offence were a fine of $3,300 and imprisonment for 18 months; an automatic disqualification period of 2 years, reducible to a minimum period of 12 months (with no limit to the maximum period).

Case Summary: Our client was found by police sitting in the driver’s seat of his car, with the motor running, asleep. The car was parked on a slight angle approximately one metre from the curb. Police knocked on the window several times to wake our client. Once awake, our client was asked to turn off the engine and was then subjected to a roadside breath test. Our client returned a positive reading and was therefore arrested and conveyed to a police station for the purpose of a breath analysis. The result of the breath analysis was in the high range and our client was subsequently charged with High Range PCA, or “drink driving”.

Our client sought legal advice from one of our DUI Lawyers and was distraught at the thought of losing his licence, as he was the state logistics manager for a large wholesale produce company and required his licence for his employment. Quite simply, an extended period off the road meant losing his “dream job”, which he had worked so hard and for several years to attain.

Our experienced Traffic Lawyer did not take long to advise our client that he should plead “not guilty” and defend the allegation. Our client was surprised but had confidence in the advice he received.

At the hearing, the police case was brief, relying on several police officers’ eyewitness account to the relevant events, as described above. Our questioning of the police witnesses was kept to a minimum. The police then sought to tender the breath analysis certificate, as allowable by law, to be relied on as the evidence of our client’s blood-alcohol content at the time of driving. It must be noted that despite our client clearly being in the high range at the police station, what is relevant is the blood-alcohol content at the time of driving. It was at this point that we objected to the tender of the certificate, arguing that the police had not met the precondition for its use. The police and the Court were initially perplexed by this argument.

According to law, the breath analysis certificate can be relied on as evidence of the blood-alcohol content at the time of driving if it was obtained within 2 hours of the last act of driving. Although it was clear that our client had at some point driven to the location, there was no evidence to suggest when this was. It was argued that the police could not prove when the last act of driving was and for that reason, could not rely on the tender of the certificate. Therefore, if the certificate was rejected, the police had no other way of proving our client’s blood-alcohol level at any time of driving.

Result: After careful consideration, the Magistrate understood and accepted our argument that the certificate could not be tendered into evidence, as the police could not establish that it had been obtained within 2 hours of the last act of driving. The certificate was rejected. No evidence of our client’s blood alcohol content was available and for that reason, our client was correctly found “not guilty” and the High Range Drink Driving (NSW) charge was dismissed.

Until seeking our advice, our client believed that he had no choice but to plead “guilty” to the charge and accept a lengthy disqualification period and the inevitable loss of his employment. Our client was extremely pleased with the outcome and that he kept faith in our advice and representation.