1st offence - low range 0.051

panda12
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Joined: Thu Oct 29, 2020 5:05 pm

1st offence - low range 0.051

Postby panda12 » Thu Oct 29, 2020 5:16 pm

Hi,

I’ve contested a drink driving charge and I’m looking for some advice in order to determine what steps I should take next. My original Traffic Infringement was 3 months and I had no idea that contesting this would result in 6 months at court. Quite disappointed about this and obviously an oversight on my behalf so now I'm desperate to do what I can to win this case.

• I was caught drink driving on Friday 15th November 2019
• BAC reading was 0.051 – at a Booze Bus
• The BAC reading roadside as well as the BAC reading inside the Booze Bus was 0.051
• Police returned my car key to me and let me drive home from the scene on the night I was charged with the offence
• I have a video recording of the officer suggesting they don’t usually let people drive home after a drink driving charge. Exact words used were “you were only a little bit over so you should be right to drive from here”
• I used a personal breathalyser prior to driving the vehicle on Friday 15th November 2019 – the reading was 0.036 roughly 20 minutes before being stopped at the Booze Bus
• After contesting the charge, my original court date was April 3rd, 2020. This was postponed due to Covid
• New court date is November 6th, 2020, however I plan to email the court and let them know I will plead not guilty
• My plan is to use the defence of Honest and Reasonable mistake – I followed the methodology of 2 standards drinks in the first hour and 1 drink each hour afterward, as well as used a breathalyser to determine my BAC prior to driving. Also hope to prove that proper police procedure was not followed.

I was originally going to represent myself, however it’s almost impossible to gauge my chances of winning the case without any expert opinion. Is this a case you would potentially take on? Happy to send my court papers and pay the fee to have them reviewed for any chance to overcome this.

The fact that an interlock program can be forced upon people who do not own a vehicle is also a concern to me. There is no way to fulfil the requirements of the interlock program when you cannot use the device as per instructed (twice per month for six months). I find it unfair and unjust that a person can never get their licence back until they complete a program that is unfeasible to people with certain circumstances.

Hardy
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Re: 1st offence - low range 0.051

Postby Hardy » Fri Oct 30, 2020 12:07 am

Hi Panda,

You should invest $350 in getting legal advice to see what can be done to save your licence. Nothing you have mentioned offers any hope but plenty of things you don't mention might give you a win. What you knew or believed is irrelevant in a drink driving case. So if you reach the stage where you are telling the court what you thought then you have already lost.
See: http://trafficlaw.com.au/conference.html

Gravy
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Re: 1st offence - low range 0.051

Postby Gravy » Fri Oct 30, 2020 10:51 am

panda12 wrote:I used a personal breathalyser prior to driving the vehicle on Friday 15th November 2019 – the reading was 0.036 roughly 20 minutes before being stopped at the Booze Bus

FYI only - The problem with this is that the alcohol you ingest takes time to move through your body. Peak blood alcohol concentration isn't reached until 30min to 1.5h after you finish drinking, depending on a range of variables (source here), but I think government/police work to 20 minutes when it comes to breath samples. Someone will correct me if I'm wrong on that.

I tend to agree with you about the blanket interlock requirement being unreasonable in certain circumstances. If a person drinks and drives we all agree they should pay the appropriate price for that, but the appropriate price for a low range BAC offence is not 'can never get their licence back'. This is why judges and magistrates should be able to exercise discretion.

Hardy
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Re: 1st offence - low range 0.051

Postby Hardy » Fri Oct 30, 2020 5:27 pm

The legislation does not take into account absorption or elimination rates. It is an absolute test that measures your alcohol content at the time of the sample being given and then deals with that reading without making any adjustments. This is to eradicate the problem of the manufacturing unreliable adjustments. So instead of worrying about what would have or could have or should have been the case, the court just has to worry about what was. This is the reason why no lawyer for the past 20 years has tried to dispute the accuracy of a breath test without the assistance of a blood test. If any person thinks that the breath test is not accurate they should request a blood test and make a phone recording of the request.

Gravy
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Re: 1st offence - low range 0.051

Postby Gravy » Mon Nov 02, 2020 10:01 am

Makes complete sense. There are way too many variables to make reliable adjustments and in any case the result at the time of driving is the only one that matters. My comment about policy was more to do with how police usually wait 15 or 20 minutes between the preliminary and evidentiary tests, though now that I think about it that's got to do with any alcohol left in the mouth evaporating, doesn't it?

Anyway... prosecution and evidence aside, both Panda's personal breathalyser and the roadside test may well have provided accurate readings. The discrepancy in the results may be explained by absorption rates, assuming Panda's machine is as accurate as the Police's. It's just a cautionary tale for self-testing because the evidentiary test result is what matters.

Hardy
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Re: 1st offence - low range 0.051

Postby Hardy » Mon Nov 02, 2020 10:39 am

I should add that under s.49.1.f no adjustments are possible for a sample taken within 3 hours of driving.
For a reading taken outside 3 hours, adjustments have to be made in order to prove the offence under s.49.1.b, so the police will need expert evidence to prove what the alcohol concentration was at the time of driving.

The ability to quibble about the reading under s.49.1.f was knocked out by the Court of Appeal in 2004:
http://classic.austlii.edu.au/cgi-bin/s ... 4/192.html


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