Drink Driving: The police don’t always get it right
Facts: Our client, Charlie (not his real name) was seen at his car in the Parramatta CBD. A demand was made by police for a roadside breath test pursuant to section 13 Road Transport (Safety and Traffic Management) Act 1999. The client failed that test and was arrested and conveyed to the Parramatta police station for breath analysis. After completing a Breath Analysis, Charlie recorded a reading of 0.097 grams of alcohol in 210 litres of breath. Our client was charged with the offence of Drive with Middle Range Prescribed Concentration of Alcohol (MRPCA) and given a field Court Attendance Notice to appear at Parramatta Local Court.
Charlie instructed us that he did not agree with the police facts which alleged that he had made admissions to driving after drinking. Whilst our client did consume alcohol while at dinner with some friends that night, he further asserted that at no stage was he in the driver’s seat after consumption.
In NSW the law states a person must not, while there is present in the person’s breath or blood
- Drive a motor vehicle, or
- Occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
- If the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.
With the assistance of an experienced criminal defence lawyer to negotiate on his behalf with the Police, Charlie was able to obtain the best possible outcome. The Drive with Middle Range Prescribed Concentration of Alcohol (MRPCA) charge was withdrawn. The matter was re-listed before Parramatta Local Court and dismissed by the Magistrate, allowing the client to drive again after attending the Roads and Maritime Service at Parramatta (or wherever) and applying for a drivers licence.
In NSW clause 2(1)(e) obstructs Police from requesting a breath test of a motorist at any part of their place of residence. If Police demand you to partake in a breath analysis at your home the results may be improperly obtained and the matter could be dismissed at Court.
It is important to note that you can still face charges in instances where the police are unable to rely on a breath analysis. You can be charged with Driving Under the Influence (DUI) pursuant to section 112 of the Road Transport Act 2003, an offence where the police have to prove beyond a reasonable doubt that you were affected whilst driving.
Generally, a charge of Driving Under the Influence (DUI) is determined by evidence put forward regarding your appearance and manner of driving. If you have been charged with Driving Under the Influence (DUI) it is strongly recommended that you engage a criminal or traffic defence lawyer. Penalties are equivalent to those of Mid Range Drink Driving, including an automatic 12 month license Disqualification, and a maximum 9 months imprisonment & $2200 fine for a first offence.
