Drink Driving Charges After a Crash / Accident

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This article was written by Michelle Makela - Legal Practice Director

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...

Drink Driving Crashes


Drink driving is a factor in about 18% of all fatal crashes in NSW. After a drink driving crash, you will not only have to deal with the physical and emotional trauma, but also with the legal consequences.

This article briefly considers what will usually happen after a crash and the offences you could be charged with. There are links to other articles of the website to give you more detail on the specific offences and penalties concerned.

What happens after the crash?

The police will investigate the crash and ask you to undergo a breath test. If the test reading is over the prescribed limit, the police will arrest you and take you to a police station to conduct a breath analysis. It is an offence to refuse a breath test or breath analysis.

If you fail the breath analysis, the police will charge you with drink driving and/or other more serious offences, including dangerous or reckless driving.

You will be notified of the date your matter is in court, and you must attend court on that day. Generally, you will be released from the police station on bail. You may have been required to sign a “bail undertaking” with certain conditions before your release. We suggest you should seek legal advice as soon as possible.

If you are seriously injured in the accident police will allow ambulance officers to transport you to the hospital in the usual fashion. Once there, however, police can require the medical professionals to draw your blood and supply it to them for testing.

There are very particular circumstances in which police are allowed to demand a blood sample, and if one is taken from you it is essential that you obtain advice on whether it was legally done.

What offences can I be charged with for drink driving?

  • Novice Range PCA (prescribed content of alcohol): You can be charged with this offence if you hold a learner or provisional licence and you were driving a motor vehicle on a public road with a blood alcohol concentration above 0.00 and below 0.02.
  • Special range PCA: You can be charged with this offence if you are considered a special category driver (such as a bus or taxi driver) and you were driving a motor vehicle on a public road with a blood alcohol concentration from 0.02 and below 0.05.
  • Low Range PCA: You can be charged with this offence if you were driving a motor vehicle on a public road with a blood alcohol concentration from 0.05 and below 0.08.
  • Mid Range PCA: You can be charged with this offence if you were driving a motor vehicle on a public road with a blood alcohol concentration from 0.08 and below 0.15.
  • High Range PCA: You can be charged with this offence if you were driving a motor vehicle on a public road with a blood alcohol concentration of 0.15 of higher.

Drink driving penalties

Unless the court grants you a section 10, you will be convicted. The penalties range from a fine to a term of imprisonment, and you will lose your licence for a period of time. If the court makes an order under section 10, there is no criminal conviction recorded, no disqualification or fine imposed. Courts do not freely dismiss matters under section 10 and need consider certain matters to be convinced that your case deserves it. According to the guideline judgment for high range PCA, if it is your first high range PCA and it is an “ordinary case”, a section 10 is still rarely appropriate.

Where the moral culpability is increased due to aggravating features such as a crash, very serious penalties including imprisonment can be imposed.

Dangerous Driving

There are several dangerous driving offences:

  • Driving in a manner dangerous to the public: If you were involved in a drink driving crash, you may be charged with driving recklessly or in a manner that was dangerous to the public. If you were involved in a drink driving crash which caused the death of another person or which caused grievous bodily harm (serious injury) to another person, you may also be charged with dangerous driving.
  • Dangerous driving occasioning grievous bodily harm: A charge of dangerous driving occasioning grievous bodily harm carries a maximum penalty of 7 years imprisonment, or 11 years imprisonment where the offence is aggravated by certain factors. A term of full-time imprisonment is usually imposed for this offence, even for people with clear criminal records.
  • Dangerous driving occasioning death: A charge of dangerous driving occasioning death carries a maximum penalty of 10 years imprisonment, or 14 years imprisonment where the offence is aggravated by certain factors. A term of full-time imprisonment is usually imposed for this offence, even for people with clear criminal records.

Drive under the influence

You may alternatively be charged with drive under the influence of alcohol or drug if police can see that you are noticeably affected by the alcohol or other drugs.

Breath Tests

If you are not injured in the accident, police will test your blood alcohol reading. They will require to either blow or speak into a hand held testing machine. If that provides a positive reading then you will be arrested and taken back to the police station where you will undergo a breath analysis. Breath analysis is a far more reliable indicator of the alcohol in your system. If you wish, after the breath analysis you can ask to have a doctor draw blood. This is the most accurate test available, but will need to be organised by you and will be at your expense. Depending on the hour and your location, it can sometimes be all but impossible to organise.

Insurance

Even if you have full comprehensive insurance, you may not be covered if it is proved that you were driving with alcohol in your system. As such, the consequences for a alcohol-related driving charge can be far greater than just a criminal prosecution and the associated penalties. Just because police have charged you with drink drive offence does not mean that you are guilty of it. A lawyer experienced in such matters will be able to advise you as to what defences may be available to you.

Compensation

As part of a criminal prosecution, police can seek compensation for damage caused by the accident. For example, if you damaged some other cars, the police can, on behalf of the owners, seek monetary compensation for the repair costs. Your insurance may not cover those costs if you were driving with alcohol in your system. Sometimes police claim more than they can actually justify, and often it is possible to negotiate a more reasonable figure. If the court, in sentencing you, makes a compensation order, then that amount is enforceable.

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

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