BEATING A DUI CHARGE / BEATING A DRINK DRIVING OFFENCE

There is a common perception in the community that a drink driving (PCA) charge can never be successfully defended. This is not necessarily accurate.

While most drink driving charges are a “fair cop”, there are a number of circumstances in which it may be possible to successfully defend against such a charge. This article sets out some of the more common ways in which a drink driving charge can be defended. You may be surprised how many different ways there are to defend a PCA charge, and how often a defence is viable.


What is a PCA charge?

Many people refer to drink driving charges as “DUI”. In fact this is usually a misconception. Most drink driving charges are not DUI but in fact PCA. So what is the difference?

DUI stands for Driving Under the Influence of alcohol. To prove a DUI charge, police have to prove that you were actually “under the influence” of alcohol at the time that you drove your car. This can be difficult and subjective. There is no objective or scientific way of telling whether or not a person is under the influence of alcohol. For this reason, most drink driving charges are not DUI, but PCA.

PCA means “Prescribed Concentration of Alcohol”. This allows the police to charge a person with drink driving as long as they have in their blood over the “Prescribed Concentration of Alcohol”, regardless of whether the person is actually under the influence of alcohol. This makes it much easier for police to charge people, as it is usually easy to scientifically measure a person’s PCA with a great degree of precision.

Ok, now that you know what a PCA charge is, how can you defend against it. There are a number of ways.


Challenging the reading.

The machines which the police use to measure your PCA (alcoholmeters) are usually very accurate and well maintained. Challenging the accuracy of the alcoholmeters is usually not easy. But it is sometimes possible to prove that the reading produced by the alcoholmeters is not the same as the reading you had at the time of driving.

Remember this, the crime is driving while over the limit. So ultimately what is important is your reading at the time that you were driving.

It normally takes about 30 minutes for the police to arrest you, take you back to the station (or mobile “booze bus”) and test your PCA accurately (the breath testing devices that you blow into at the side of the road are prone to error, so their reading is not enough to allow the police to charge you).

Because your blood alcohol level goes up and then down over time, the reading you get from the alcoholmeter might not be representative of your blood alcohol content at the time of driving. Given enough information, scientists engaged by us can calculate your likely reading at the time of driving.

What all this adds up to is that sometimes it is possible for us to prove that, although you were over the limit at the time of your breath analysis, you were not over the limit at the time you drove, hence you are not guilty of drink driving.

By the way, even when you were well and truly over the limit, the same principles can sometimes be applied to reduce the range from say high range to mid range or from mid down to low, hence reducing substantially the maximum penalties applicable.

Whether or not it is worthwhile to pursue this kind of defence depends on a number of factors including your reading, how much alcohol you drank, when you drank it and how much and what you ate on the day, just to name a few. Our lawyers will be able to advise you whether in your particular circumstances the defence may apply.


Honest and reasonable mistake.

Contrary to popular perception, it is a defence to a PCA charge if you honestly and reasonably thought that you were under the limit at the time of driving.

Simple thought it sounds, in practice, being able to show that your belief in your own sobriety was reasonable can be challenging, especially in the current social climate in which drink driving is increasingly seen as inexcusable. We can discuss your particular situation with you and advise you whether we think you may have this defence open to you.


The two hour rule.

It is a little known fact that the police are not allowed to require you to undertake a breath test if more than 2 hours has passed since you last drove a car. What this means is that if you were tested more than 2 hours after you drove, it may be possible to have the evidence of your intoxication thrown out of court.

Most often, police stay well within the two hour rule, however, there are times when the rule is breached. This is most common in situations where police attend at the scene of an accident. Not infrequently, by the time the police arrive at the scene, more than 2 hours has passed since the time of the accident.


The home safe rule.

Equally unknown is the ‘home safe’ rule. This rule states that it is illegal for the police to require you to submit to a breath test at your home. As with the two hour rule, if police breath test you in breach of that rule, we may be able to have the evidence of your reading thrown out of court.

The precise legal meaning of what is a person’s home is complex (eg. is the driveway of a block of units your home?). However, if you think you may have a possible defence on this basis, talk to us about it.


Final word.

It is important to make it clear that neither the author of this article nor Armstrong Legal encourage or endorse drink driving. In fact, we are active in education programs aimed at discouraging such behaviour. However, we also passionately believe that every individual is entitled to know what their legal rights are. They purpose of this article is to provide you with information about your legitimate legal rights to defend a PCA charge.