2014
An introduction: drug and drink driving offences
Chris Owens / 0 Comments /Some of the most popular, for want of a better word, offences heard in the Local Court are offences that involve driving and alcohol or drugs, commonly referred to as drug or drink driving charges, or DUI. Many people get confused about the terminology, but broadly the offences that relate to driving, alcohol and/or drugs can be put into four categories:
- Prescribed Concentration of Alcohol offences
- Driving under the influence of drugs or alcohol
- Driving with illicit substances in the system
- Refusing, failing and altering offences
Prescribed Concentration of Alcohol
Prescribed Concentration of Alcohol (or PCA) rely on the police being able to analyse the breath of a suspect. There are five categories of PCA: Special, novice, low, mid and high range. Which charge will depend on the reading. For an offence of PCA to be proved the police do not have to show that your driving was affected (though this may be relevant in sentencing). The police only need to show that you were driving, or attempting to drive a vehicle, and that at the time (or within two hours of the time) your blood alcohol concentration (BAC) was above the legal limit. The police prove this by producing a certificate of your BAC. You should not be breath tested in or at your home. This includes your front yard or driveway, and can even include the driveway of the unit block you live in.
If you are breath tested at your home, the certificate should be inadmissible in court. That means that the police will not be able to rely on it as evidence, and you should be found not guilty of any PCA charge. That doesn’t mean that you should try to flee from the police and get home before they can breath test you. Not only would you in all likelihood be charged with a police pursuit offence, but police can charge you with an alternative offence called driving under the influence of alcohol or drugs.
Driving under the influence of alcohol or drugs
The charge of driving under the influence of alcohol or drugs (DUI, often confused with PCA offences) does not require proof of any particular reading indicating alcohol in your blood, saliva or urine. Instead, to prove a person was driving under the influence of drugs or alcohol, the police need to prove that the person:
- was driving
- had used or consumed drugs or alcohol
- was affected by the drugs or alcohol when they drove.
The evidence that police could use to prove a person had consumed alcohol or used drugs can be based on:
- observations (the smell of alcohol, slurring words, unsteady on feet)
- blood tests that show the presence of banned or prescribed drugs
- admissions by the person that they drank a certain amount of alcoholic drinks or took drugs.
The evidence that police could use to prove a person was affected by alcohol or drugs can be based on:
- observations such as the person slurring their words, being unsteady on their feet
- pharmacological reports or opinions (usually supplied following blood tests that indicate the presence of drugs) that suggest the levels of the alcohol or drugs in the system would adversely affect someone’s driving.
Driving with illicit substances in the system
Not only can police perform random breath tests for alcohol, but police can also test for the presence of illicit drugs in a persons oral fluid. Typically these tests can be performed at the roadside and if either:
- a positive result occurs
- a negative result occurs but the police have suspicions that the person has used drugs
the sample of oral fluid (saliva) given is retained and sent for testing. If there is present any illicit substance then the person can be charged with this offence. It is not necessary for the police to prove that the person’s driving was affected.
Refusing, failing and altering offences
There are a number of other offences that relate to drink or drug driving. Some examples include:
- Refuse or fail to submit to providing a blood sample when unable to provide an oral fluid sample
- Wilfully introduce or alter the amount of a drug in oral fluid or blood after being required to provide an oral fluid or blood sample
- Refuse to submit to taking of a blood or urine sample after involvement in a fatal crash
- Wilfully introduce or alter the amount of a drug in blood or urine after involvement in a fatal crash
- Refuse to provide oral fluid sample.
Each of these offences carries serious penalties including fines, imprisonment and disqualification.
The next post will look at common defences to these types of charges as well as what are mitigating and aggravating factors when it comes to sentencing.
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