2014
Defending drug and drink driving charges
Chris Owens / 0 Comments /If a person has been charged by police with drug or drink driving charge, in particular a Prescribed Concentration of Alcohol (PCA) offence or Drive with Illicit Substance in the System offence, there would seem to be little chance of successfully defending it. This is because that charges of these type use certificates of Blood Alcohol Concentration (BAC) or results of blood, urine or oral fluid tests as prima facie evidence that the person did drive a car with drugs, or a specific level of alcohol, in their system. What this means is that all the police have to do is present the scientific evidence, and evidence that the person drove, or attempted to drive, a vehicle. There is no need to prove that the drugs or alcohol affected their driving.
So what can the average person do to cast doubt on this evidence? Fortunately there are a number of ways to defend these charges and call into question the evidence upon which they rely.
A person cannot be tested at their home for drug or drink driving
Clause 2 of Schedule 3 of the Road Transport Act 2013 states that the police can’t make a person submit to a test, analysis or assessment, or to provide a sample, at a person’s home. This means that they can’t ask a person to provide a sample of breath or oral fluid (or anything else) for the purposes of alcohol or drug testing, if the person is at their home.
If any sample is taken, and the result is positive for drugs or above a particular PCA, then those results will generally be inadmissible as evidence in court. And without that evidence the police case would be very weak indeed.
What person’s home is has been broadly defined in case law. Previous legislation has referred to a place of abode rather than home, so there may be a question mark as to whether the intention of this legislation is to narrow the definition. Nevertheless, a number of court decisions have found that a driveway is included in a place of abode, even a driveway that forms part of a block of units.
Some words of warning. The existence of this defence should not be seen as a licence to drivers to speed away from RBT units in an attempt to get home before the police catch up to them. Not only do they risk hurting or killing themselves or someone else, but also risk serious charges relating to speed, dangerous driving and police pursuits, which carry heavy penalties including imprisonment. And even if the police can’t test them they can still charge them with an alternative offence of driving under the influence of drugs.
At the time of driving they were not over the limit
When a person is pulled over by police and breath tested, the results of that test are not necessarily determinative of a charge. The initial breath test is only a guide, and if a positive reading is produced, the person is arrested, but only for the purposes of a breath analysis. A breath analysis may take place at the roadside or back at a police station. The time between when the person drove and when the breath analysis was performed can determine if there is the possibility of a defence.
BAC does not peak the moment a person has a drink. The presence of alcohol in the system can continue to rise after a person has consumed an alcoholic drink, usually peaking about an hour later. A breath analysis can be performed up to two hours after the initial breath test. So it is possible to make the argument that although the analysis of the person’s breath put them at or above a certain PCA range, at the time they drove they were not. This would be particularly effective where a person quickly downed a few drinks before jumping in the car for a quick drive home, and the time between breath test and breath analysis was significant.
In order to succeed at a defence like this, it would be prudent for a defendant to get a report from an expert (for example a pharmacologist) indicating the likliehood of them being within a particular PCA range at the time they drove. Such a report will usually take into consideration factors such as:
- weight
- height
- age
- gender
- consumption of food
- drinks consumed
- type of drinks.
Such a report may in some cases be sufficient evidence to cause the prosecution to withdraw the charge. However getting the report done can be expensive, so you should get legal advice about your case before deciding if this defence would be available to you.
The test was wrong
If a breath analysis indicates a person is within one of the prescribed ranges, and that person is certain they have not consumed alcohol for a lengthy period of time, then it is possible that the equipment used is faulty. To prove this the person would need to present evidence of a fault with the breath analysis machine, evidence of a fault in how the machine was operated, or extremely compelling evidence that they had not consumed any alcohol for a significant length of time.
A person is entitled, at their own expense, to get a blood test taken and analysed at the time of the breath analysis. This could indicate the there was no alcohol in their system at around the time of the breath analysis and cast doubt on the reading.
If a person’s sample of blood, urine or oral fluid has tested positive to any number of illicit drugs, and the person drove when that or those drugs were in their system, a charge of Drive With an Illicit Substance could result. It is not impossible, however, for those positive results to be wrong. It is possible that some other legitimately prescribed drug to manifest itself as one of those illicit substances. However, any person seeking to prove this would need expert evidence (again most likely from a pharmacologist) to be given in court, which could be a very expensive exercise and does not guarantee success.
There is a statutory defence if the illicit substance is morphine. The Road Transport Act allows a defence where the person can prove that morphine was taken for medicinal purposes.
The person was not driving
These types of offences are only committed if the person drives or sits in the drivers seat and attempts to put the vehicle in motion. So if a person was only sitting in the drivers seat (maybe to sleep off the effects of alcohol, for example) and made no attempt to drive or put the car “in motion” then they should not be found guilty. Whether a court would believe them is another matter.
They were tested too late
Police should not request a breath test, breath analysis or sample of oral fluid more than two hours after the person was pulled over. For blood and urine tests, the time is four hours. Any evidence obtained outside these periods should be inadmissible as evidence in court.
Reasonable and honest mistaken belief
If the court is convinced a person believed they were not over the limit when they drove, and also believes that it was reasonable to hold that belief, then they may be found not guilty. This is called a defence of ‘reasonable and honest mistaken belief’, or in Lawyer speak, the Proudman and Dayman defence.
In essence, a person would need to convince the court that they kept track of what they drank over how long, and that a reasonable person would not expect to be over the limit in those circumstances. As alcohol affects everyone differently, it is extremely difficult for a person to know if they are over the limit or not. The RTA (now known as RMS) used to promote guidelines about safe drinking levels, indicating that drinking certain amounts should keep a person below the legal limit. For men, it was two standard drinks in the first hour and one every hour after that. For women it was one standard drink in the first hour and one every hour after that. Obviously this didn’t take into consideration individual differences, and could lead people to unknowingly break the law. Also, what was a standard drink was unclear to some. Which is probably why these guidelines are no longer in use.
However, the promotion of these guidelines are still probably recent enough that some people have them in their mind and use them as a guide when they have had a drink and then decide whether to drive or not. It could be argued that a person who carefully counted their drinks and the time they drank them would have a reasonable and honest mistaken belief that they were not over the limit. If the court accepts this as true, they should be found not guilty.
Other defences
There may be other defences to drink and drug driving charges. For example, it may be possible that it was necessary for a person to drive while under the influence or over the limit, because of:
- emergency
- necessity
but these would be complicated defences and anyone who thinks they may apply to their situation should get legal advice.
If you think we have left any defences out, or have heard of other ways people have got off these types of charges, feel free to comment below. Any requests for legal advice, however, will not be responded to. If you need legal advice about your situation, contact us.
The information contained in this page is for general purposes only and may not apply to your case.
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