Defences


PCA 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 as one of the elements of that offence requires a discretionary judgment to be made by the attending police officer.

Below are a number of possible defences to a drink driving charge. If you have been charged with drink driving in the ACT and you believe one of the below defences may apply to you, it is essential that you seek legal advice as soon as possible to ascertain the possibility of defending your charge.

Alcohol from an allowable source

This defence can only be used when the 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 PCA charge if you can show that the reading charged was caused by one of two items:-

  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 content.

No intention to drive

As stated on our main webpage, PCA offences are strict liability offences, which means that intention is not required for the offence to be proven. There is a limited scope to defend a drink driving charge in relation to intention.

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

You may not know that 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 relevant time periods 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 that they were 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 them to do so due to any injury you may have suffered. Furthermore, if you have been admitted to the hospital after an accident and undergoing 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 PCA 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. There are a number of legislative exceptions to this rule, however:-

  1. If a police officer reasonably suspects that you were the driver or driver trainer in a motor vehicle on a road or road related area when it was involved in an accident;
  2. If a police officer reasonably suspects that you were the driver or driver trainer when an offence of culpable driving committed; or
  3. If they require the breath test immediately after the vehicle was stopped and they have followed the vehicle to the place of residence from where it was driving on the road.

WHERE TO NEXT?

In NSW, traffic offences are treated seriously. Therefore, it is important to get competent legal advice as early as possible, whether you have received a penalty notice, had your licence suspended or been charged with a serious offence. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.

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