Pleading Guilty or Not Guilty - Defending drink driving charges
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. Further down the page there are a number of defences to drink driving charges.
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.
Below we have a list of some matters that have been run successfully as defences. It is by no means an exhaustive list and is just intended to show you some of the complexity of defended drink driving cases.
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.
Some defences to drink driving charges;
1. 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
2. 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.
3. 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).
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
If you want to discuss a possible defence fill out an enquiry form or phone us today.
