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  • Writer's pictureLGee Julius Lawyers

CAN YOU DEFEND A DRINK DRIVING CHARGE?

Updated: May 31, 2023


Authored by: LGee and Julius Lawyers




WHAT IS A DRINK DRIVING CHARGE?

There are two charges under the Road Traffic Act 1961 (SA) (the Act), which are commonly described as ‘drink driving.’ They are:

1. Driving with a prescribed concentration of alcohol in the blood; and

2. Driving under the influence of alcohol or drugs.


Driving with a Prescribed Concentration of Alcohol (PCA)


It is a criminal offence to drive, or attempt to drive, a motor vehicle whilst you have the ‘prescribed concentration of alcohol’, as defined by the Act, in your blood. The PCA is determined by your Blood Alcohol Content (‘BAC’) reading, which may be tested by Police using a road-side breath analysis device, or by a blood test. It is not relevant whether you ‘did not feel drunk’ or thought you were ‘fine to drive.’ The law is strict and provides that if you exceed the allowable BAC limit, you will be charged.


The prescribed limit of allowable BAC for full licence holders is 0.05.


For a learner, provisional or probationary licence holder, any BAC reading is a breach of licence conditions. Further, if the BAC reading is above 0.05, the driver may also face a PCA charge.


If found guilty by the Court of a PCA charge, the penalties that the Court may impose vary depending on your BAC and whether you have been convicted of ‘drink driving’ before. Ultimately, the Court may impose fines ranging from $1,300 to $2,900 and loss of licence periods ranging from not less than three months, to not less than three years. These penalties may be reduced if it can be shown that the offence was ‘trifling.’


Driving Under the Influence (DUI)


Although similar, it is a separate criminal offence to drive, or attempt to drive, a vehicle while under the influence of alcohol or a drug, as to be incapable of exercising effective control. Here, your mental and physical ability is significant to whether you may be charged.


If found guilty by the court of a DUI charge, the Court is compelled to order, in the case of a first offence, that the driver be disqualified from driving for a period of not less than twelve months, and in the case of a subsequent offence, for a period of not less than three years.

Other penalties include fines ranging from $1,100 to $2,900 or in some cases of subsequent offending, the driver may be sentenced to a term of up to six months imprisonment.

In some cases, drivers may be charged with both a PCA and a DUI.


CAN YOU DEFEND THE CHARGE?

It is important that you obtain legal advice when considering your defence to a drinking driving charge.


LGee and Julius Lawyers can assist you in defending your charge and will first consider whether there are any defences to the charge available to you. For example, the following defences may apply to your circumstances:


  • The breath analysis machine was not working properly

  • You were driving on private property

  • Police failed to comply with procedure

  • Honest and reasonable mistake of fact

  • BAC test taken more than two hours after driving

Should you decide to plead guilty to a drink driving charge, LGee and Julius Lawyers can assist in presenting your circumstances to the Court in the best light possible, to try and minimise your penalty. This is particularly important because the sentencing Magistrate has considerable discretion when determining the severity of your penalty, and there are aspects of your circumstances, and the circumstances of the offending, that the Magistrate must consider when exercising that discretion.


Should you need assistance with your drink driving matter, please do not hesitate to contact one of our experienced lawyers on 08 7200 3121.

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