Getting The Best Result

  • Pleading Guilty or Not Guilty

    The decision to plead guilty or not guilty is the most important decision that you make in a drink driving case. It is very important if defending a drink driving charge to have all the information from your lawyer.

    You have to weigh up the chance of winning a defence of your drink driving charges with the extra cost and the possibly worse penalty you may receive.

    Most defences to drink driving matters are procedural. The defence is that the Police did not perform their duties correctly in the way that the test was administered or in what was said and done at the time of the alleged drink driving.

    Successful defences are generally not an attack on the reading itself or stating that the machine used was faulty. These types of defences are usually unsuccessful.

    The Police have to prove drink driving charges beyond reasonable doubt. That is the starting point. The most common defence to a drink driving case is where the Police do not prove all the elements of the offence that they need to.

    Drink driving defences often depend on great detail about the procedure that was followed by the Police and then the Police proving that in Court.

    To make a definite decision about whether to plead guilty or not guilty depends on getting a copy of the Police Brief and taking proper instructions.

    In making your decision you have to balance the not guilty plea with the fact that you get a discount for pleading guilty to a drink driving charge. The Court will treat you better if you do not use up their time. This is particularly important in situations where you have prior Court appearances for drink driving and you main concern is staying out or prison.

    It is also a very important consideration when your aim is to try to get the Magistrate to impose the minimum period of disqualifcation that they are allowed to.

    Defending Drink Driving Charges

    Outside 3 hours from driving (no crash)

    • If prosecution is under s. 49(1)(b), and no crash, blood sample must be taken with informed consent of driver: Day v. County Court of Victoria and Hanson (2002) VSC 426.
    • For breath sample must also obtain sample within 3 hours for certificate to be valid. See sections 55 and 58 of Road Safety Act 1986

    Outside 5 hours (from accident)

    • Important period of time is still 3 hours from driving or being in charge of a motor vehicle. Under s. 56 accused can be conveyed to the hospital for a blood sample. If that person is over 15 years, expressed consent not required. Where a sample is taken outside three hours from person driving vehicle and and sample returns a blood alcohol concentration of less than the prescribed limit, the police would have to rely on a back-calculation to the point of the accident, and charge under s. 49(1)(b). It is difficult to establish a blood alcohol concentration with precision if resorting to back calculation.

    Problem with chit (ie self test not saying “correct”)

    • If the informant supplies the motorist with a certificate that shows a self-check error, then this will put the motorist on notice that the defence under s. 49(4) (breath testing instrument not working) may be available. To test the viability of the defence, maintenance records of the instrument could be subpoenaed (see Johnson v Poppeliers (2008) VSC 461).

    Police giving legal advice ie that better off not having blood test as reading might be higher

    • Police can’t provide advice to a motorist about the merits of requesting a blood sample: DPP v Moore [2003] VSCA 90. However inadvertent failure to mention right under s. 55(10) does not negate a prosecution: Johnson v Poppeliers [2008] VSC 461.

    Factual dispute about what was said constituting a refusal

    • Precise recital of the wording of the requirement to accompany not required. The test is whether the evidence as it stood was such to prove that the respondent was given reasonably sufficient information to know what was required of him and why: Rankin v O’Brien [1986] VR 67 and DPP v Blyth 16 MVR 159
    • Informant doesn’t have to spell out that the requirement to accompany for a breath test includes a requirement to remain at the station until 3 hours have expired or until the taking of the breath sample. The requirement to remain is implied: Sanzaro v County Court of Victoria [2004] VSC 48.
    • A charge-sheet that states a refusal to accompany for a breath test, but does not expressly mention section 55(1) does not render the charge a nullity: Bell v Dawson [2000] VSC 169
    • Whether a person has remained at a breath testing location is a question of fact in each case: Hrysikos v Mansfield [2002] VSCA 175. In that case left booze bus for cigarette, but remained close-by, and at no stage refused to provide breath sample.
    • Request to accompany for breath sample to be made on reasonable grounds.

    Requirement to specify period of time to remain at Police Station for a breath test/blood test

    • See case of Uren v Neale [2009] VSC 267. Must tell motorist required to remain at station for 3 hours, or until breath/blood sample has been taken (as per the elements of section 55.

    Whether driving / in control.

    • Is decided on a factual dispute over whether the accused was in control/driving as per the definition under s. 3AA of the Road Safety Act 1986. Mitchell v DPP [2004] VSCA 36: a reasonable belief for the purposes of requesting a breath test under s. 55(2) includes a reasonable belief that an accused has used or been in control of a motor vehicle within the preceding 3 hours.

    Whether open to and used by public

    • Location of alleged offence is not an essential element to a charge under section 49. So the offence can be established even if prosecution have charged accused on private property, or have specified the incorrect address on TIN or charge sheet: Gigante v Hicks [2001] VSCA 4.

    There are many other defences and each one depends on the facts of your particular case.

    How do I Get The Best Result?

    The following are just some very useful techniques for getting the best possible result for a drink driving charge. If we act for you we would plan a strategy that suits you in particular. We would discuss these and other options to present the best possible case for you in Court.

    1. Complete a Road Trauma Course 

      Completing a Road Trauma Course demonstrates to the Magistrate that you are serious about improving your driving behaviour.A Road Trauma Course is where people such as ambulance drivers talk to the people there about what happens in the aftermath of traffic accidents and their experiences. The course is approximately three hours long.Doing the Course will show a Magistrate that you are truly reflecting on the issue of drink driving. It is important in showing that you are making a real effort. Go to the following link to find the details of how to book into a Road Trauma Course:
      http://www.rtssv.org.au/education/
      Generally they will require a letter from you Solicitor outlining the charges as a referral to accept you on a course.

    2. Arrange effective character references

      It is our experience that a well drafted court character reference can have an impact upon the sentence that is imposed by the court. We believe that a court character reference must paint a picture of your character. If your character references don’t help you stand out from the other offenders in court then you will be dealt with just like all the other cases.Most court character references make statements like this “James Brown is hardworking, energetic and generous with his time and money”. We believe that these references have very little impact upon the sentence imposed by the Court. As some Magistrate’s comment I have never read a bad character reference. But by the use of examples, illustrations and stories a referee can bring your character to life.


      downloadIcon_lge
      Download a guide on how to write an effective character reference.
    3. Ask Doogue O’Brien George to act for youDoogue O’Brien George has a team of lawyers who specialise in representing clients charged with drink driving. These lawyers appear daily before all the Magistrates’ Courts in Victoria.
      What this means for you:

        • Your lawyer will know the Magistrate and how best to approach them;
        • Your lawyer has specialist knowledge as to what penalties and orders to ask for;
        • Your lawyer knows what to say and more importantly what not to say.
    4. Arrange alcohol counselling if you have an alcohol problem 

      It is common practise where an offender has a number of alcohol related offences on their record for a Magistrate to question the offender as to whether they have an alcohol problem.
      If you do have an alcohol problem it is wise to have alcohol counselling to help you abstain from alcohol or reduce your alcohol intake. Under the Sentencing Act the Court must take into account your attempts to rehabilitate yourself when imposing a sentence.

    5. Liver function test 

      We would discuss with you getting a liver function test. The liver processes alcohol. A liver function test can explain why a person had a much higher reading than they would have expected given the amount that they had drunk. It does not give you a defence but it can explain why your reading was high even though you were trying to be very careful counting your drinks.These are just some of the matters that we will discuss with you. We have handled thousands of drink driving cases and consistently get great results for our clients.

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