Frequently
Asked
Questions
in Drink Driving Cases
If
I plead guilty, can the court allow
me to keep my licence?
No.
Legislation imposes mandatory licence
cancellation for all drink driving
offenders.
I
got caught drink driving. Can you
save my licence?
Most
of
my clients are facing drink driving
related charges, and many of them
keep their licence. To find
out if it is realistic to save your
licence you will need to see me
after you have your court papers.
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?
The
only way to avoid licence cancellation
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
also: 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 prosecution
evidence is 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 licence loss
period, not a discretionary licence
loss period. See the Penalties
page.
But
what if I offer to pay a $6,000
fine, do 500 hours of community
work, enter into a good behaviour
bond for 10 years plus have an
interlock installed for 3 years?
Making
up your own penalties is not an
option.
Can
I get a drive-to-work licence or
daytime hours licence?
No. See the Work
Licences 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 always 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,
people with higher readings have
a better chance of being acquitted
because it is much less likely they
were breath 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).
My
breath alcohol limit is 0.05%,
so can I drink a stubbie traveller
on the way home?
Since
December
2011 it is illegal for a driver
or person in charge of a motor
vehicle to consume alcohol. The
penalty is a moderate
on-the-spot fine with no licence
loss or demerit points.
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 adducing
evidence that 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 occurred. 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
$6,000.00 (plus or minus $1,000)
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 often 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
lengthy 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?
The
fee for an appearance at court is
usually between $900 and $1,800
depending on the circumstances,
especially the priors. 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?
Most
likely yes. 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 did not object to the fine
within 28 days your case is closed.
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. If you still haven't got
anything after 12 months then 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 seem
to have sufficient funding to allocate
to defending 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 $400.00
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
Driving Online Forum
Sean Hardy is a drink driving lawyer
practicing exclusively in traffic law
who specialises in defending and winning
drink driving charges in court.
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