Frequently
Asked Questions
in Drink Driving
Cases
If
I plead guilty, can the court let me
keep my licence?
Generally
not. See the Penalties
page for exceptions to this.
I got caught drink driving. Can you save my licence?
Most
of my clients are facing drink driving charges, and many of them keep
their licence. You should come and see me once you have your
court papers and then I will be able to tell you how likely it is that
I can save your licence.
My
drink driving infringement notice says
I will lose my licence for 13 months. What should I do if I want to save my licence?
You're only option is to defend the case successfully in court. You do this by objecting to
the infringement notice and then making an appointment to see me once you have your court papers. See: Conferences.
Is my drink driving case winnable?
Every case has a chance of winning. Many cases are easy to win while
others are far more
difficult. Much depends on what the police will say and do in the court proceeding.
Can
the Magistrate take into account my
personal circumstances, including my excellent driving history, to reduce the
mandatory minimum licence loss period?
That's absolutely impossible. It is a mandatory minimum period, not a discretionary minimum period.
See the Penalties
page.
What
if I offer to pay a $6,000 fine, do 500
hours of community work and undertake
not to commit any further offence for
15 years?
Impossible.
There are only two alternatives if you are facing mandatory licence loss. Win your case or
lose your licence.
Can
I get a drive-to-work licence or daytime hours licence?
Such licences do not exist. See the Penalties
page.
Should
I object to my infringement notice to
take the matter to court?
If you need to save your licence from cancellation, you
must object to the infringement notice and take it to
court.
Read the Fines
page.
Will
I lose my licence for a longer period
if I take the matter to
court?
In
nearly all cases the licence loss
period will not get worse if you take
it to court.
What
are my chances of winning in court? what_are_my_chances_of_winning
It
depends on the state of the paperwork
and the police evidence. It usually
does not depend on the your version of
events, and it almost never depends on
what you drank. If you had an accident,
or had a blood sample taken, or you
refused to cooperate with the police
then your chance of winning will actually improve. No
lawyer who knows how to win a drink driving case can possibly answer this
question without seeing your charge and summons and the police
statements. See
the legal
advice
page.
Will
having prior convictions for drink
driving make it harder to win my
case?
No.
It is totally irrelevant what your driving history is.
Will
having a very high reading make it
harder to win my case?
No,
the magnitude of your reading is
usually irrelevant. Statistically, the
higher your reading is the greater
chance you have of being
acquitted because it is less likely you were tested at a booze bus.
I
believe my breath test result was
incorrect. What can I do to challenge
the reading?
You
need to ask for a blood test immediately after you receive your breath
test result. You will find it very difficult to challenge the reading
unless you asked for a blood test. Don't dismay though, I usually win
drink driving cases without needing to challenge the reading.
I
had only two light beers before driving
and am sure I was under 0.05%. Can I
use this evidence in my defence?
Not unless your blood test result backs you up on that.
I
had 4 drinks at home after I finished
driving. Can I use this to reduce my
reading?
Generally
not. The court can not take into
account any evidence about what you
drank after you finished driving unless
you have witnesses who can prove you
were stone sober when you were
driving.
I
think the breath test result came from
my mouth-wash. Is this a good
defence?
No.
It does not matter what caused the
alcohol to be in your breath.
My reading was high because I did not eat
any food all day. Will this help?
No.
Your reading was high because you drank
too much alcohol. The state of your
digestion or health or drug use has
nothing to do with the prosecution of
the charge nor with any defence (unless
you are so sick you can not provide a sample of
breath).
Do
I need to prove I was under 0.05% to
win my case?
No.
That is the last thing you should worry
about. The laws in Victoria make it
almost impossible for anyone to win a
drink driving case by trying to show
they were under 0.05% at the time of driving.
Not to worry though, there are many
other ways to win a drink driving
case.
After
I lodge an objection to an infringement
notice, what happens next?
Within
about 2 or 3 months the police will
serve a charge and summons on you which
sets an initial court date. It can
sometimes take up to 12
months to get court papers.
How
long after I get the court papers will
the case be heard?
If
you want to fight the case, it will not
be heard for about 4 to 12 months after the initial court date. If you want
to plead guilty, it can be determined
any time you wish.
Which
court will the case be heard in?
The
case will be heard in the Magistrates
Court closest to where the offence
occured. It is not possible to change
courts if you are pleading not
guilty.
When
should I have a conference with you to
get the case started?
Generally,
you should seek advice as soon as you
get the court papers or as soon as your
licence is suspended. If you are
particularly desperate and want
everything checked no matter what the
cost, then you might also seek legal
advice before you lodge a notice of
objection to an infringement
notice.
What
does it cost to fight a drink driving
case?
Roughly
$4,000.00 (plus or minus $1,500)
depending on what is involved. If the
case does not proceed all the way to a
final hearing it usually costs less. If
you win, the police usually pay those
costs. If you decide not to fight the case, the cost will be much less.
What
will happen to my licence if I am found
guilty?
Generally
your licence is cancelled and you will be disqualified from driving for a lenghty period depending
on the severity of your offending. See
the Penalties
page.
I
am happy to plead guilty. Do I need a
lawyer?
If
it is a simple booze bus offence you
probably won't need a lawyer to help
you plead guilty, provided you had a
licence and you have no more than 1
prior drink driving offence. If you use
a lawyer, you are far less likely to be
disappointed with the outcome or want
to lodge an appeal. Legal
representation can help keep your
licence disqualification period and
fines low, and ensure you avoid any
term of imprisonment or community work
order. I represent people who wish to
plead guilty or not guilty.
What
do you charge to represent me on a plea
of guilty to a drink driving
charge?
My fees fall between $750 and
$1,300 depending on the nature of the
case. Some drink drivers have been charged with other offences, such as driving whilst
suspended, careless driving or
dangerous driving, and this can make
the case more complicated and more
expensive. See: Pleading Guilty
Is
it difficult to get my licence back at
the end of the disqualification
period?
Depends
on the severity of your offending, but
you should assume it is going to be a
large pain in the neck to get
relicenced. See the Relicencing
page.
Will
I need to have an Interlock if I am
relicenced?
Depends
on the severity of your offending. See
the Interlock
page.
How
do you win a drink driving case?
There
are dozens of ways of winning traffic
cases. See the cases
page
for examples. The best thing you can do
is see an experienced defence lawyer.
Any lawyer who tells you that you can
not win your case is merely confessing
they have no idea how to win a traffic
case. Find a better lawyer.
I
am sure I don't have any defence.
Aren't I wasting my time?
Unless
you are an experienced criminal trial
lawyer (or perhaps a police
prosecutor), you will not recognise a
defence even if it is staring you in
the face. In any event, it is not
necessary to have a defence to be
acquitted of criminal charges - you are
innocent until proven guilty. The outcome often
depends on what the police say in
court. Read this
case example
and this
one.
See also the Legal
Advice
page. There are regularly defendants
who can not see a defence yet still
contest their case and win. They do not
feel they have wasted their time. You
need to decide if you want to invest
your time and money in taking the
chance. People who are prepared to risk
their life and licence by driving after drinking
should have no fear in taking the risk of defending their case in court.
What
should I say to the court in my
defence?
Preferably
nothing at all. In most criminal cases
the defendant does not give evidence so
you can stop wondering what you might
have to say in court.
I
paid my drink driving fine and lost my
licence for 14 months. I am about to
have a baby so I need my licence back
desperately. Can I ask the court to
reduce the time of
disqualification?
No.
If you do not object to the fine within
28 days your case is closed. If you pay
the fine your case is closed. By paying
the fine you are admitting guilt. A
mandatory minimum period can never be
reduced if you are guilty. No court can
ever impose a sentence that is less
than the mandatory minimum
sentence.
I
have been waiting 3 months for the
police to send me a charge and summons.
Should I call them and ask them where
my papers are?
No.
Just wait. After 12 months seek legal
advice.
Can
I apply for Legal Aid?
You
can apply but it is unlikely to be granted unless you are at risk of
imprisonment and you satisfy their means test and other conditions
(e.g. intend to plead guilty). Occasionally I refer clients to Legal
Aid and I might act for them if they are granted aid. Legal Aid does
not often fund traffic law matters, especially defended traffic law
matters. Legal Aid does not have sufficient funding to pay barristers
to fight technical defences to drink driving cases. Legal Aid in-house
lawyers are not renown for defending traffic cases. Some people may
have an insurance policy that covers them for some legal expenses in
traffic matters. RACV's Total Care cover pays about $350.00 for legal
expenses in traffic prosecutions.
The
police have asked me to go to the
police station for an interview. What
should I do?
Don't
go, or don't undergo an interview,
unless your lawyer tells you to do
so.
drink
driving legal advice for victorians
Drink driving fines in victoria
Related
Pages:
Breath
Tests
Fines
Court
Process
Relicencing
applications
Interlock
conditions
Immediate
Licence
Suspensions
Drink
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