Traffic Law

How to Beat a Drink Driving Charge

Many people think that just because they have been charged with drink driving (often referred to as a PCA or DUI charge) that they have no option but to plead guilty to the charge and accept the harsh drink driving penalties that come with it.

This is a misconception. Although rare, it is possible to beat a drink driving charge and our Drink Driving Lawyers have successfully done so many times.

So how can you defend a PCA (Prescribed Concentration of Alcohol) charge? The most common reasons for defending PCA offences are:

1. Honest and reasonable mistake

2. Blood alcohol level was lower at the time of driving

3. Police procedure had not been properly complied with

4. Police cannot prove that the person was driving or attempting to put the vehicle in motion

Honest and reasonable mistake

It is a defence to a PCA charge if you honestly and reasonably believed that you were under the legal limit when you were driving.

Once this defence is raised, it is for the prosecution to prove that the mistake was either not honest or not reasonable. Although in theory this can seem like a simple exercise, in practice, depending on the circumstances surrounding the case, it can sometimes prove a little more difficult for a Court to accept that the mistake was reasonable.

It is, however, an available and legitimate defence and our experienced lawyers can advise you of the merits of such a defence depending on your circumstances. 

Lower blood alcohol level

The breath-testing instrument used by police at the side of the road does not give an accurate reading of a person's blood alcohol level. The police cannot rely on the result to charge you with a PCA offence. A positive reading, however, allows police to arrest you for the purpose of submitting you to an official breath analysis (either at a police station or at a nearby mobile testing site) on a different instrument. It is only the result of the breath analysis taken after your arrest that the police can rely on, even though the result is obtained some time after the last act of driving.

However, as we know, to be guilty of a PCA offence, the relevant time that the person needs to be in the PCA category alleged is at the time of driving (or attempting to put a vehicle in motion). This means that it is the blood-alcohol level at the time of driving that matters.

It is common knowledge that a person's blood-alcohol level rises and falls over time, even if the person has stopped drinking. It is therefore also common that, given that there is often some time lapse between being pulled over, arrested and eventually submitted to the official breath analysis, your blood alcohol-level at the time the official reading is obtained is different from what it would have actually been at the time of driving.

It is therefore sometimes possible to prove, through the use of a expert pharmacologist evidence, that although a person's blood-alcohol level was above the legal limit at the time of the "official" breath analysis, it would have in fact been lower than the legal limit at the time of driving. If this can be proved, then the person cannot be guilty of drink driving.

Through the same process, it is also possible to successfully have a High Range PCA charge reduced to a Mid Range and a Mid Range PCA charge reduced to a Low Range. This can result in a major difference in penalties and more importantly, periods of licence disqualification. 

Police not complying with procedure - "Two hour rule"

Certain procedures need to be followed by police when they arrest and charge someone with a drink driving offence. The procedures to be followed are governed by NSW law. There are several procedural requirements that police are meant to comply with and not complying with these procedures can sometimes result in a person successfully defending a PCA charge.

Although there are several requirements that can give rise to defending a drink driving charge, in relation to a PCA offence, the most important requirement that must be followed by police is to obtain the breath analysis certificate within a period of two hours of the last known act of driving (or, attempting to put the vehicle in motion). This is sometimes referred to as the "two hour rule".

There is a requirement that the police are to obtain a breath analysis result (different to the roadside breath test) within two hours from the time a person was driving. Firstly, this means that a police officer is not supposed to submit someone to a breath test if it is more than two hours since the person lat drove. More importantly, and for the purpose of successfully defending a drink driving charge, it is a precondition to the admissibility of the breath analysis certificate (which is used to prove the blood-alcohol content of the driver) that it is obtained within two hours.

Therefore, if the police have obtained a blood-alcohol reading by way of a breath analysis more than two hours after the last known act of driving (or attempt to put a vehicle in motion), then the breath analysis certificate cannot be used in evidence to prove the driver's blood-alcohol content. This would then mean that the police would have to rely on some other means to prove that the driver was driving with a range of prescribed concentration of alcohol. In practice, this is near impossible.

Driving or attempting to put the vehicle in motion

The most common way that drivers are charged with PCA drink driving offences is by way of a Random Breath Test (RBT). Under those circumstances, the question of whether the person was driver and at what time the driving occurred does not become an issue. However, there are often circumstances where police do not witness an act of driving and have to rely on other witnesses, admissions by the accused or other circumstances to prove that the person was driving and when. 

Other times, police attend upon a driver who may be sitting in the driver's seat and then the issue of contention is whether or not the person was driving the vehicle at the time and/or attempting to put the vehicle in motion.

In most circumstances, police will charge the driver, knowing that most people will just plead guilty to the offence or, obtain legal advice and be told by their lawyer that they need to plead guilty to the offence because "no one will believe" that they were not driving or attempting to put the vehicle in motion.

Of course, most lawyers find it difficult to accept that these offences can be defended and forget that it is always a matter for the prosecution to prove each element of the charge beyond a reasonable doubt. In circumstances where a defence is a available for a drink driving charge, a very competent lawyer can successfully defend the charge without the need for the accused person to give evidence. 

You can read further in our "results" section an example of a Prime Lawyers drink driving lawyer successfully defending a high range drink driving charge.

If you have been charged with a drink driving offence and require legal representation, contact one of our experienced lawyers at your nearest Prime Lawyers office.

We have offices located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.

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