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Drink Driving Defences

Drink driving offences are strict liability offences, which essentially means that as long as the act is performed, that is, you are driving a motor vehicle on a road or road related area and have the recorded blood alcohol level the offence is proven. There is a common perception that this means that these offences can never be defended. Whilst it is difficult in most situations to defend a drink driving charge, it is not impossible.

Alternatively, if you have been charged with the offence of drive under the influence, there may be a larger scope to defend the matter because one element of that offence requires a discretionary judgment to be made by the attending police officer.

Alcohol from an allowable source

This defence can only be used when the blood alcohol content reading is less than 0.02. As such it is only available to special category drivers. You may be able to rely on a defence to a charge if you can show that the reading charged was caused by one of two things:

  1. an alcoholic beverage that was consumed as part of a religious ritual; or
  2. consumption of a substance of that was not intended to be used for its alcoholic content, either entirely or partly. For example, this would cover food or medicine that has alcohol in it.

No intention to drive

The Road Transport (Alcohol and Drugs) Act 1977 provides a defence if you had not started, or attempted to start or put the vehicle in motion, and you can show that you had no intention of doing so until the concentration of alcohol in your system was under the prescribed limit. For obvious reasons, this defence is very difficult to substantiate and the burden of proof will be on you to show that you had no intention to drive.

Two Hour Rule

If you have been in an accident, there is a time limit in which a police officer can request that you undergo a screening test, or provide a breath sample for analysis.

The time limits are:

  • if you are taken to hospital, due to an accident having occurred, within two hours of having arrived; or
  • two hours after the accident occurred.

Of course, in some cases this rule is difficult to apply strictly. The legislation provides that in the situation that a police officer attends the scene of an accident and is unsure as to when the accident occurred, and a person is found at the scene and the police officer reasonably believes the person was in the vehicle, the time limit for requiring a test extends to two hours from when that person was found.

Injury or Medically Dangerous

Similarly, a police officer cannot require you to undergo a screening test, or provide a breath sample if it appears to them that it would be dangerous or impractical for you to do so due to any injury you may have suffered. Furthermore, if you have been admitted to the hospital after an accident, and having a test or providing a sample would be detrimental to your medical condition, you cannot be required to do so. Before you can rely on this defence, your injury and the detriment that it would cause you must be provided in writing by a doctor or authorised nurse.

Home Safe Rule

This defence can only apply to drink driving matters as it relates to the legal admissibility of the blood alcohol reading obtained by the police.

The “home safe” rule states that the police have no power to require you to submit to a test if you are at home, that is, the place where you usually live.

For advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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