Australia Drunk Driving Defense Attorneys

  1. Victoria
    1. Isaacs Chambers: If driving a motor vehicle anywhere within Victoria (even on private property): * You are obliged to undergo a preliminary breath test if requested. * If you are required to undergo a full breath test, the police will ask you lots of questions. The answers to these questions generally help the police prove their case and often prevent you from raising defences that might otherwise have existed. Answering questions greatly increases the likelihood the police will charge you with an offence. Everything you say (and sometimes even the things you didn't say :-) will be recalled and used against you in court. The police can use your answers to prove important facts like time of driving, time of accident and time of drinking etc. Answering police questions is generally not in your interests and is usually damaging to your defence. If you wish to defend the inevitable charges that will result from undergoing a breath test, tell the police nothing more than your name and address. If you think there is something important the police should know, call your lawyer to get some immediate advice about it, or tell your lawyer about it the next time you see him and he will deal with it.
  2. New South Wales
    1. Sydney Criminal Defense Lawyers: Driving under the influence (DUI) is different to standard drink-driving (PCA) offences. While PCA offences, such as low, mid or high range drink driving require police to prove that your blood alcohol concentration was a certain level, DUI charges do not require police to prove that you were affected by a specific amount of alcohol – only that you were affected by some amount of alcohol or drugs. DUI charges are generally based on police observations about your driving, actions or demeanour which may suggest that you were under the influence of drugs or alcohol, rather than a breath test. DUI charges often arise when procedures for PCA charges are not complied with; for example, if you are breath tested at the police station more than 2 hours after driving, or where police suspect that you are affected by prescription medication or other drugs. Being charged with DUI can be a confronting and upsetting experience, especially if it is your first time in court. However, you can count on the dedicated legal team at Sydney Criminal Lawyers to help you every step of the way; from explaining the charges to you, to representing you in court if necessary.
    2. Boorman, Joshua: Drink Driving Q. I could not complete the breath test because of a medical condition but I have still been charged by the police, do I have a defence? A. Possibly, if you can demonstrate to the court that the medical condition prevented you providing a specimen of breath. Q. What are the potential penalties for a first offence of drink driving A. Offence Maximum fine Maximum jail Automatic disqualification Novice range PCA (.00 –.019) $1,100 Nil 6 months Special range PCA (.02 – .049) $1,100 Nil 6 months Low range PCA (.050 – .079) $1,100 Nil 6 months Mid range PCA (.080 – .149) $2,200 9 months 12 months High range PCA (over . 150) $3,300 18 months 3 years Driving under the influence (DUI) $2,200 9 months 12 months Refuse breath analysis $3,300 18 months 3 years Willfully alter blood concentration $3,300 18 months 3 years Refuse breath test $1,100 Nil 6 months Second and third drink driving offence will attract higher penalties and in certain cases jail.
    3. Armstrong Legal: The penalties for each drink driving (DUI) offence increase if you have been convicted of a previous major offence within the last 5 years. A major offence includes the following offences (uncommon offences not included) 1. Driving under the influence of alcohol (DUI) 2. Novice range PCA - drink driving 3. Special range PCA - drink driving 4. Low range PCA - drink driving / DUI 5. Mid range PCA - drink driving / DUI 6. High range PCA - drink driving / DUI 7. Refuse breath analysis / Fail to provide a sufficient sample of breath - Drink Driving / DUI 8. Drive while suspended / cancelled and disqualified - Drink Driving / DUI 9. Drive in a manner or speed dangerous to the public - Drink Driving / DUI
    4. Nyman Gibson Stewart: (Ask) whether the blood alcohol concentration reading was accurate, whether time limits were observed, whether your case could be defended or the seriousness reduced for example from high range to mid range or mid range to low range, and discuss the consequences of being a disqualified driver, suspended driver or cancelled driver. What is Prescribed Concentration of Alcohol? Prescribed Concentration of Alcohol simply means the amount of alcohol measured in grammes per 100mL of blood. High Range Prescribed Concentration of Alcohol (HRPCA) means a concentration of 0.15 grammes or more of alcohol in 100mL of blood. This would mean that if you had an unrestricted licence, you would be at least 3 times over the legal limit of 0.05. What are the penalties for HRPCA? The penalties for HRPCA are as follows: Maximum Fine: $3,300.00 Maximum Term of Imprisonment: 18 months Automatic Disqualification Period: 3 years Minimum Disqualification Period: 12 months Can a Disqualification Period be Avoided? If you plead guilty to HRPCA, a disqualification period can be avoided only if the Court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999. This means that the Court has found you guilty of the offence without recording a conviction. The Guideline Judgement - How Does it Relate to You? On 8 September 2004 the NSW Court of Criminal Appeal (NSWCCA) handed down a guideline judgement for the offence of "Driving with a HRPCA". The NSWCCA stated that an 'ordinary case' is one where: 1. You drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol; 2. You were detected by random breath test; 3. You have prior good character; 4. You have nil, or a minor, traffic record; 5. Your licence was suspended on detection; 6. You pleaded guilty; 7. There is little or no risk of re-offending; or 8. You would be significantly inconvenienced by loss of licence. The 'ordinary case' is now used by sentencing Courts as a template in determining whether your matter is similar or more or less serious. Prior to the guideline judgment most lawyers would have agreed that an 'ordinary case' was a very good case. The NSWCCA went on to state, that in an 'ordinary case', an order under section 10 of the Crimes (Sentencing Procedure) Act will rarely be appropriate. A conviction cannot be avoided only because the offender has attended or will attend a driver's education or awareness course. Further, the automatic disqualification period (3 years) will be appropriate unless there is good reason to reduce the period of disqualification. Good reasons may include the following: 1. The nature of your employment; 2. The absence of any viable alternative transport; or 3. Sickness or infirmity of you or another person. Obviously, the NSWCCA has stated that the penalties will be more severe for a person who commits a second or subsequent HRPCA offence (second offence within 5 years). A section 10 for a second or subsequent HRPCA 'would very rarely be appropriate'. In fact the Court stated that where the prior offence was a HRPCA any sentence of less severity than Community Service Order would generally be inappropriate. Your moral culpability is increased if any of the following factors are present: 1. The degree of intoxication above 0.15; 2. Erratic or aggressive driving; 3. A collision between your vehicle and any other object; 4. Competitive driving and showing off; 5. The length of the journey at which others are exposed to risk; and 6. The number of persons actually put at risk by the driving. Where a number of these factors are present to a significant degree, a sentence of less severity than imprisonment of some kind including a suspended sentence, would generally be inappropriate. Where a number of these factors are present to a significant degree for a second or subsequent HRPCA offence a sentence of any less severity than full-time imprisonment would generally be inappropriate. It is the writer's experience that most sentencing Courts have now adopted the principles for HRPCA and applying them to the offences of Novice Range PCA through to Mid Range PCA. Although the NSWCCA has stated that a driver's education course is not a reason to make an order under section 10, it can be used as a reason for the sentencing Court to reduce the disqualification period or fine. The judgement fails to make the distinction between the experienced driver who has been driving for 30 years with nil record and the driver who has been driving for 1 year with nil record. The guideline judgement may be making the sentencing Courts hand out harsher penalties but time will only tell whether or not it will decrease the rate of drink driving on our roads.
    5. Proctor & Associates, Parramatta: DUI - Driving Under the Influence of Alcohol The offence of DUI or Driving Under the Influence of intoxication liquor or a drug is created by section 12(1) of the Road Transport (Safety & Traffic Management) Act 1999 and states as follows: (1) A person must not, while under the influence of alcohol or any other drug: (a) drive a vehicle, or (b) occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or (c) being the holder of a driver licence (other than a provisional licence or a learner licence issued under the Road Transport (Driver Licensing) Act 1998 ), occupy the seat in or on a motor vehicle next to a holder of a learner licence who is driving the motor vehicle. It can be seen therefore in respect of a DUI offence involving alcohol, that a person might not be over the prescribed limit of 0.05 and yet driving under the influence of alcohol . There must be some observed signs by a witness that in their opinion, the person was so affected, that the court can draw the inference that the person was driving under the influence of alcohol. Such observations of erratic driving, combined with observations of the person displaying outward signs such as being unsteady on his feet, bloodshot eyes, slurring his words, having trouble putting the key into the ignition etc. all combine to conclude that the person was driving under the influence (DUI). Driving Under the Influence of a Drug Section12(1) of the Road Transport (Safety and Traffic Management) Act 1999) which creates the offence of DUI of alcohol also creates the offence of DUI of a drug. There are now provisions in place for police to carry out random tests of drivers for the detection of the presence of drugs (see the section on DUI - Random Drug Testing). If police pull over a person because of the way the vehicle is being driven and they carry out a random breath test but the driver does not indicate a positive breath test for Alcohol, then the officer may suspect that the driver is driving under the influence of a drug. He is then entitled under s.25 of the act to carry out what is called a "sobriety test". If the driver refuses or fails the sobriety test, then he is arrested and police are empowered to have taken a sample of the driver's blood or urine which is submitted for analysis. Defence S. 28 of the Act sets out the circumstances when police are not permitted to carry out a sobriety assessment. They are similar to those pertaining to breath testing, except that there is a 4 hour time limit for the taking of blood samples and a 2 hour limit in the case of oral fluids. A person might also be under the influence of prescribed medication and guilty of the offence of DUI. It matters little, in reality, what it is that is affecting the driver, if such person is a danger on the road owing to him/her Driving Under the Influence (DUI) of anything that affects his/her driving. Random Breath Testing Section 13 of the Road Transport (Safety and Traffic Management) Act 1999 empowers police to carry out random breath tests. Such request by the officer arises only if he "has reasonable cause to believe" that the person was the driver etc. In cases of random stops on the roadway, it is axiomatic that such belief is reasonable. Offence It is an offence under subsection (2) for the driver to "refuse" or "fail to undergo" such breath test. Defence: It is a defence to a request to undergo a breath test if the person can satisfy the court that he was unable on medical grounds to undergo such breath test in accordance with the officer's directions. (S.13(3) ) Further to Defences relating to breath testing, under Section 17 of the Act, Police are not permitted to carry out a breath test (or breath analysis) in the following circumstances: - A person who has been admitted to hospital - unless no objection by the medical practitioner ; - If the person has been injured and it might be dangerous to carry out a breath test/analysis ; - After the expiration of 2 hours from the occurrence of the event and - At that person's home. Breath Analysis Following a failed breath test, police have power to then arrest and take the person to the Police station where they are submitted to a BREATH ANALYSIS. A breath analysis is carried out on a machine which is a prescribed instrument under the legislation and is referred to as a Drager Alcotest 7110 instrument. This instrument is much larger than the hand held instrument used at the roadside. It is in fact a finely tuned scientific instrument which measures the breath by way of infrared absorption and electrochemical reaction. When the subject blows into the tube, there is a requirement to light up 16 asterisks after which the operator will tell the subject to cease blowing. This "blowing of breath" by the subject must reach a volume of 1.5 litres of "deep lung air" which is then analysed by the instrument and in turn prints out a long strip, (similar to a cash register receipt) which indicates the concentration of alcohol expressed as gm./100ml. of blood. This analysis is one of "breath to blood ratio" which means that 2100 ml. of breath contain the same weight of alcohol as does 1 ml of blood. There have been challenges to this system of measurement because of factors such as "body temperature" and variations between individuals, such that there are changes on foot for the reading to be expressed as "breath alcohol concentration" rather than "blood alcohol concentration". If that change is brought about, then the reading will be expressed as "gm. of alcohol in 210 litres of breath". Offence It is an offence to refuse or fail to submit to a breath analysis in accordance with the directions of the officer. Defence Similar defence provisions are available as set out for Breath Testing. (see DUI - Random Breath Testing) Random Drug Testing Division 3A of the Road Transport (Safety and Traffic Management) Act 1999 was inserted and became effective on 15 December, 2006. This gave police power to carry out "Oral Fluid Testing" of drivers for the purpose of testing for the presence of illicit drugs. This is carried out at the roadside by way of a swab being placed under the tongue for the detection of a prescribed illicit drug. The definition of illicit drugs simply means cannabis, speed (amphetamine) and ecstasy and can be any combination of these. Drive with Prescribed Illicit Drug This offence is more fully described as "Driving while having present in oral fluid, blood or urine, a prescribed illicit drug". Section 11B(1) & (3) of the Road Transport (Safety and Traffic Management) Act 1999 creates an offence for a person to drive a motor vehicle, attempt to put it in motion or sit alongside a learner while having present in his/her oral fluid, urine or blood, a prescribed illicit drug (cannabis, speed or Ecstasy) or in his/her urine or blood, morphine or cocaine. These two offences carry the same penalties as those of Low Range Prescribed Concentration of Alcohol and must not be confused with DUI – driving under the influence of a drug. Also, these offences have nothing to do with any prescribed concentrations. If an illicit drug is detected in your oral fluid (saliva), blood or urine – and you are driving a motor vehicle, attempting to put a vehicle in motion, or accompanying a learner driver, then you have committed an offence. Under the Road Transport (Safety and Traffic Management Road Rules) Regulation 1999 a Standard is required for instruments/devices used in testing the oral fluid of a driver. Regulation 130B(2) requires that the "oral fluid testing device" used by police in random drug testing has a standard whereby it must be capable of indicating a concentration of 150 ng/mL or greater. Regulation 130B(1) requires that the "oral fluid analyzing instrument" must be capable of confirming a concentration of 25 ng/mL, or greater. It is recognized from studies that have been done, that when a person first smokes a "joint" the concentration of THC (the active ingredient in Cannabis), rises to well over 70 nanograms and maybe up to 100 nanograms, but quickly drops back to about 20 nanograms and reduces further with time. An exacerbated problem arises when a person combines cannabis with alcohol and drives a motor vehicle. A blood alcohol of 0.04 combined with one joint equates to a person having a blood alcohol concentration of 0.140 resulting in the risk of having an accident being increased by a factor of 48.
    6. Wayne Levick, Blackton

      There are defences to such charges. Some of the defences available include:

       

      1. Two (2) hours has elapsed between driving and the time a breath test was taken,
      2. If the test was administered by police on private property without the consent of the property owner,
      3. The Defendant was not driving,
      4. Inability to comply with police request on provable medical grounds,
      5. The breath test was taken less than twenty (20) minutes after the driver's last drink.
  3. Adelaide
    1. Stanley & Partners: There are very few defences to a charge of drink driving. However, the following matters should be carefully considered and legal advice obtained before answering a charge involving drink driving. They may give rise to a total defence or provide a basis for a reduction in penalty.
      1. Are all the certificates accurate? Check the date, time and other details for accuracy.
      2. Is the information on the "docket" provided by the breathalyzer accurate? Again, check dates, times etc.
      3. Was the initial request to stop you lawful?
      4. Were you given the appropriate notices and advice?
      5. Were you properly notified of your rights regarding blood testing?
      6. If the 2 hour rule applies, are the times alleged accurate?
      7. If you have blood taken is the blood result significantly different to the breath analysis test?
      8. If a collision has given rise to a blood test:
  4. Queensland-Brisbane
    1. Harper Finch:

      A conviction for a drink driving offence in Queensland will result in a mandatory licence disqualification, although the period of disqualification depends on the licence held and the alcohol reading.

      For Open licence holders, the minimum disqualification periods are as follows:

      0.05% -> 0.99%: 1 month

      0.1% -> 0.149%: 3 months

      0.149% and above: 6 months

      For unlicensed drivers, Learner and Provisional licence holders, the minimum disqualification period is 3 months.

      If a person has a prior drink driving conviction within the last 5 years, their minimum disqualification will automatically increase.

      You should always seek expert legal advice to make sure that you know what penalty you might receive.

    2. Howden Saggers Lawyers: DRINK DRIVING In today’s harsh economic climate keeping your licence may ensure that you keep your job. Alternatively, limiting any disqualification period may be your priority. Are you entitled to a work licence? If you exceed the speed limit by more than 40 kilometres per hour can you get a special hardship order? What happens if you drive while disqualified? If your licence is cancelled for longer than 2 years can you apply to get it back earlier? These are just some common questions we are frequently asked. Some people mistakenly think they can save money by representing themselves in court. The laws in Queensland relating to drink driving and traffic offences are complex and change regularly.
    3. DC Adolphe Legal: If you have been charged with a serious traffic offence your Driver’s License may be suspended by Queensland Transport or the Court. If you lose your driver’s license you may be at risk of losing your job or business. The usual threats to a driver's license come from:- 1. Demerit point disqualification due to an accumulation of demerit points in excess of the allow amount for the type of driver's license that you hold; 2. Drink driving with a blood/alcohol concentration in excess of the allow amount for the type of driver's license that you hold; 3. Driving more than 40 km/h over the posted speed limit. Whilst these are the most common ways in which people may face a suspension or disqualification of a driver's license these are not the only ways. Driver's licenses can be suspended or disqualified for certain offences such as those referred to as the "anti-hoon" laws which usually consist of cause undue smoke or noise, racing or illegal vehicle modifications. Your driver's license can all be suspended or disqualified as a result of you driving when your driver's license is already suspended or disqualified by the State Penalties Enforcement Registry (SPER), Queensland Transport or the Court. You need to get legal advice to protect your job or business and DC Adolphe Legal can provide that advice. David Adolphe is the principal solicitor of the firm and has many years experience in dealing with traffic matters, driver’s license suspensions and disqualifications. The comments above are a general discussion of traffic laws and driver's licensing in Queensland and should not be taken as legal advice. Before you make any decisions you should consult a qualified solicitor to protect your interests. You can speak to a solicitor at D.C. Adolphe Legal by calling (07) 3010 9492.
    4. Gilshenan and Luton: The traffic laws in Queensland contain tough provisions in relation to drink driving. Drink driving is a general expression that covers a variety of offences involving a person who is affected by alcohol or other drugs operating or attempting to operate a vehicle. If you are convicted of drink driving, the penalties usually involve both licence disqualification and a fine. Repeat offenders face the prospect of jail sentences.
    5. Queensland-Springfield-Springfield Legal Services: There are 3 legal limits for alcohol in your blood system: a zero alcohol limit (or .02% to be exact) for drivers within certain professions (e.g. taxi, truck & bus drivers while on the job) and those under 25 years old and hold a provisional licence, learner's permit or (worse still) have no license at all; over .05% but under .15% - having a concentration of alcohol in your system. This has less severe penalties; .15% & over - under the influence of alcohol (i.e. drunk). This has serious consequences especially if you are apprehended 3 times in 5 years (you must go to prison).
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