Case facts

Our client attended a work lunch, during which he had a couple of schooners of beer with his meal. He left the lunch later in the day and was stopped by police for a random breath test (RBT) on his way home, an hour after finishing his last drink.

The reading from the RBT was 0.04 – below the legal limit of 0.05. Although his breath test results showed he was not driving unlawfully, he was still arrested and taken to the local police station. He was then subjected to a further breath test that returned a reading of 0.05, placing him in the low range for prescribed concentration of alcohol offences.

Our client was unaware that at the time of driving his reading was lawful, and while his licence was not suspended on the spot, he risked a period of disqualification if he received a conviction. As a teacher who was required to travel to different schools on a regular basis, he needed to keep his licence to enable him to continue to earn a living. He had no penalty infringements or traffic offences on his driving record.


How the case proceeded

After initially representing himself at court (a move that almost resulted in a wrongful criminal conviction, disqualification and a fine), the driver sought expert legal advice from Nyman Gibson Miralis.

We advised him of potential defences available, including the illegality of the arrest, the fact that the officer was not acting lawfully in the execution of his duties, and that the reading at the time he was driving was below 0.05.

The circumstances were sufficient to negate the evidentiary certificate that was relied on by police to establish the supposed low range reading.

The client accepted our advice, and we sought to overturn the plea. The application was successful, and plea was withdrawn.


Potential penalties for this offence

This offence was the first offence within a five-year period and the maximum penalty in this case would have included a fine of up to $1,100. Additionally, the driver would have been given an automatic disqualification period of six months, and a minimum of three months, unless dealt with under section 10.


Case result

The client’s original guilty plea was overturned and then an adjournment was sought to enable us to obtain a pharmacological report.

While our client would have been a good candidate for a section 10, there was no guarantee he would get one and it was clear that a conviction would have been grossly unfair, as the client had done nothing wrong.

The police officer had no power to arrest our client after a roadside breath test reading below the legal limit, and he also had no power to request our client undertake a breath analysis. Getting the charges withdrawn in the local court was the only fair outcome for our client.

The results of the report indicated that on the balance of probabilities, at the time of driving, our client’s blood alcohol concentration would have been below 0.05. A reading of below 0.05 would have meant that our client was driving lawfully and his arrest was unjustified.

A subpoena was also issued to the police officer for a copy of the notebook entry made at the time of the RBT. Once provided this confirmed that the initial reading was 0.04.

Next we drafted legal representations enclosing the information we had received and asking for the charges to be withdrawn considering the new report. We also sought costs should the police decide to continue with the charge and the client be found not guilty.


An excellent outcome

The police withdrew the charge of low range drink driving. No further action was taken and the matter was settled without our client receiving a conviction, fine or losing his licence.


Why you need an experienced traffic lawyer

This case is a perfect example of why it is necessary to consider legal representation by a traffic lawyer and defence solicitor. Had the client not sought advice, the section 33 Certificate and facts would have tendered on the client’s unrepresented plea putting him at risk of penalty and a criminal record.


Nyman Gibson Miralis provides expert advice and representation in all areas of drink driving and traffic law. Contact us if you require assistance.