How to defend a Drink Driving Charge
There are two ways that someone can defend against a drink driving charge:
- The prosecution fails to prove all elements of the offence. This might involve failing to prove that:
- The accused was driving or in control of the vehicle;
- The breathalyser reading is reliable; or
- The police followed proper procedure, putting the breath test result in doubt.
- Successfully running the legal defence of honest and reasonable mistake of fact.
If you have been charged with drink driving, please contact a specialist drink driving lawyer so that you can discuss how to achieve the best possible outcome in your matter.
Please note that this article is not legal advice. It only presents general information.
What Are the Drink Driving Laws in Victoria?
In Victoria, drink driving is criminalised under the Road Safety Act 1986 (Vic).
The Act notes numerous offences related to drink driving. However, the most common drink driving charge in Victoria is driving with or more than the prescribed concentration of alcohol (PCA) (s49(1)(b)) and returning a test result within 3 hours of driving with or more than the prescribed concentration of alcohol (PCA) (s49(1)(f)).
A person is guilty of driving with or more than the PCA if the prosecution can prove beyond a reasonable doubt that the accused:
- Was driving or in control of a motor vehicle; and
- Had the PCA or more than the PCA present in their breath or blood; or
- A prescribed breathalyser returned a test result within 3 hours of driving of the or more than tha PCA.
How Can I defend of a Drink Driving Charge?
To get out of a PCA drink driving charge, the defence must give or point to evidence that:
- The accused was not driving or in control of the motor vehicle; or
- The accused did not have the PCA or more than the PCA present in their breath or blood while driving (s49(1)(b)); or
- The breath testing device was not operated or operating correctly at the time of the test.
Show that You Were Not Driving or In Control of the Vehicle
Most drivers are charged with PCA drink driving after stopped for a random breath test. In those cases, there is normally no question the accused was “driving or in control of the vehicle”.
But there may be some circumstances where the police didn’t see the accused driving and they have to rely on other evidence (e.g. witness testimony). In those circumstances, a defence lawyer may be able to show there doubt that the accused:
- Was actually driving or in control of the vehicle; or
- Was sitting in the driver’s seat, intending to drive or attempting to control the vehicle.
Show that the PCA Reading is Unreliable
In some circumstances, it may be possible for a defence lawyer to show that the accused’s PCA at the time of driving was lower than their PCA reading at the time of testing.
Although the breathalyzer devices that the police use to measure PCA are presumed to be accurate and reliable, the key issue with a s 49(1)(b) charge is your PCA at the time of “driving” – not at the time of “testing”. In the time that the police take to pull you over, test you, arrest you, take you back to the station and test you a second time, your PCA level may have gone up.
If there is any doubt as to the accused’s PCA, the defence may wish to retain a pharmacology or toxicology expert. A pharmacologist or toxicologist may be able to calculate the accused’s likely PCA at the time of driving. This evidence might show that:
- The accused was under the PCA limit at the time of driving but over the PCA limit at the time of testing; or
- The accused was over the PCA limit at the time of driving but not to the extent originally indicated (e.g the accused was actually mid-range rather than high-range at the time of driving).
If the evidence does show the above, it may be used to defend a PCA drink driving charge or lessen the penalty (e.g. the accused should only be penalised for mid-range instead of high-range drink driving). Alternatively, it might show there is some doubt about whether the breathalyser was operated or operating correctly.
Prove that the Police Failed to Follow Proper Procedure
When the police test and charge someone with a drink driving offence, there are specific procedures that they must follow. If the police fail to follow proper procedure, the defence may be able to defeat the drink driving charge.
In Victoria, it may be possible for the defence to argue that:
- The police did not obtain the breath or blood test within 3 hours of the accused driving a vehicle;
- The accused’s PCA reading at the time of testing was solely due to the consumption of alcohol after driving the motor vehicle; or
- The police made some other procedural error which led to an incorrect PCA reading.
Is there a Legal Defence to Drink Driving?
Honest and Reasonable Mistake
There are very few legal defences in relation to drink driving – however, the defence of Honest and Reasonable Mistake may be applicable in some circumstances.
In Victoria, the accused may rely on the defence of honest and reasonable mistake if they prove the following three elements:
- The mistaken belief was honest (a subjective test, or what the driver truly believed);
- The mistaken belief was reasonable (an objective test, or if the Court thinks it was reasonable for the driver to believe that); and
- The mistake was in regard to fact and not law.
There is real doubt whether this defence is available for drink driving charges, but if it is, it is very difficult to raise. You should contact a specialist drink driving lawyer for advice.
Once the defence has been raised, the prosecution carries the burden of proving that the mistake wasn’t honest or reasonable. If the prosecution cannot disprove the defence, the accused must be found not guilty of drink driving.
What is the Penalty for Drink Driving in Victoria?
Penalty for PCA Drink Driving
The penalty for a PCA drink driving charge depends on:
- How many previous drink driving convictions you have;
- Your BAC reading at the time of the offence.
The maximum penalty for a PCA drink driving charge ranges from a fine of 20 penalty units (about $3,300) to 18 months imprisonment (s49(2A)).
Further, anyone found guilty of PCA drink driving will face a mandatory disqualification period of at least 3 months (s50(1A)). For a first offence, the minimum disqualification period is usually the number of months closest to the rounded-down value on the breathalyser’s certificate of analysis. So a reading of 0.156 would result in 15 months’ disqualification; a reading of .172 would result in 17 months’ disqualification, and so on.
How Long Does a Drink Driving Conviction Stay on My Record?
How long a drink driving conviction stays on your public criminal record depends on how old you were at the time of being sentenced in court:
- 18 or Older: Your drink driving conviction will stay on your disclosable criminal record for 10 years, and on your VicRoads driving history indefinitely.
- Under 18: Your drink driving conviction will stay on your disclosable criminal record for 5 years, and on your VicRoads driving history indefinitely.
However, even if a conviction is removed from your public criminal record, the police and the Victorian courts may still be able to see the conviction on their private criminal records.
For more information, please see Will I Lose My Job for Drink Driving?
Car Insurance After a Drink Driving Conviction (Australia)
If you are convicted of drink driving, you may find that:
- Insurers do not want to provide you with car insurance
- Your premium rate increases dramatically
- Your excess is increased
A drink driving conviction normally affects your insurance for 3 to 5 years. It is very important you check your insurance policy, because most insurers require you to tell them if you have been charged with or found guilty of a drink driving offence. If you then fail to tell them, you may not be covered by the insurer in the event of an accident.
Is it Worth Getting a Lawyer for a Drink Driving Charge?
If you are under investigation or charged with drink driving, it is worth getting a lawyer to discuss your legal options and answer questions like:
- Can the prosecution prove all elements of the offence?
- Will the Road Trauma Course improve my case?
- Will counselling improve my case?
- Is expert forensic examination of the evidence required?
- How will my previous drink driving convictions affect my case?
- How will my PCA reading affect my case?
- Is there a legal defence I can rely on?
- Should I plead guilty or not guilty to drink driving?
- Can I negotiate my charges with the prosecution?
The police have no power to prevent you from telephoning a lawyer while they are questioning and testing you for drink driving, but nor are they required to stop their investigation while you do, or arrange for you to speak with a lawyer. There are very significant penalties for refusing to comply with valid requirements for drink driving investigations, so it is important you do not refuse to do anything “until I speak to my lawyer”.
Please contact our team at Sher Criminal Lawyers for expert advice and representation in your drink driving matter. We are here to protect your legal interests and help you achieve the best possible outcome.
Our specialist drink driving lawyers are extensively experienced and frequently advise and represent clients in matters before the Magistrates Court of Victoria.
We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.