How to beat a DUI charge in NSW: In this Sydney Drink Driving Lawyers article we break down the ways in which a person charged with a drink driving or alcohol related traffic offence can potentially beat or have withdrawn the criminal traffic charges which have been laid against them by the Police. We will look at all the major defences available for these types of DUI charges.
What is a PCA Charge?
In New South Wales a drink driving or DUI charge is generally referred to as a PCA (Prescribed Concentration of Alcohol) matter where either a breath or blood sample is taken by the Police and analyzed.
If the breath or blood analysis returns a reading that is above the legal limit for that persons particular drivers licence then the Police will lay criminal traffic charges which will require the accused to attend Court to enter a plea of guilty or not guilty and proceed through the NSW Court Process for a DUI .
The law says that where an accused is conclusively presumed to be intoxicated by alcohol the prosecutions needs to tender evidence proving that the accused’s breath or blood is above the legal limit where a concentration of alcohol in 210 litres of breath or 100 millilitres of blood has been taken and tested by the Police.
If found guilty for a PCA matter then the accused will have a criminal conviction recorded against their name, for more information on this see Criminal Convictions for DUI Offences. However, their is an exception to this when a person pleads guilty and successfully argues for the Court to deal with their matter by way of a section 10, which basically means that the accused pleads guilty but the Court does not record a conviction against their name.
Alcohol related traffic offences such as PCA matters are some of the most common criminal offences committed within our society and it appears as though the offences are increasing as we see more and more people driving on our roads. But the reality is that drink driving matters are dealt with harshly by the Courts since drink drivers are putting other peoples lives at risk.
Whilst we would never advocate drinking and driving, as lawyers we have a duty to our clients to to the very best we can to act in our clients best interests and obtain the best results possible. Many times you will find that a standard PCA or drink driving type of matter will have no feasible legal defence available to plead not guilty and be successful. In such common cases like this we generally recommend that our client enter an early plea of guilty in order to receive a 25% discount of their penalties when their matter appears before the Court.
However, that is not to say that we do not look at all of the angles when presented with the facts and circumstances surrounding each matter that we work on. In fact if we do believe their is a strong defence we will certainly outline these defence option to our client and seek further instructions as to what plea they wish to enter when heir matter comes before the Courts.
How Can I Beat A DUI Charge?
Generally when we refer to beating a DUI or drink driving type of charge it means that we believe that the accused has a strong defence to run in Court and the accused decides to enter a plea of not guilty and pursue such legal defences.
Whilst receiving a section 10 would result in an accused not receiving a criminal conviction – at the end of the day it still means that the accused has pleaded guilty to the offence thus we do not consider this beating a charge but instead receiving a certain level of leniency whilst admitting guilt to the offences.
When we refer to beating a DUI we mean that the accused will rely on a legal defence to being found not guilt of such an offence.
Another way in which one could beat a DUI charge is by pointing out the stark deficiencies on the Police Prosecutions case and entering into negotiations for the Police to withdrawn their charges. This may generally occur where the Police realise that the accused has a very strong defence in being found not guilty by the Courts.
For the purpose of this article we will explore some of the most common legal defences to drink driving charges that exist within New South Wales.
What are the Defences available to me?
Challenge the Blood Alcohol Reading
When a charge of PCA is laid by the police they will generally use the result of a breath analysis as evidence in Court to prove that the defendant is guilty of the drink driving charge. Depending on the circumstances of each matter it may be worth obtaining a specialist pharmacological report to challenge the police blood alcohol reading and presenting to the Court evidence which proves that at the time of actually driving a motor vehicle the blood alcohol level was in fact lower than what the reading was at the time the defendant was tested.
Challenging a police blood alcohol reading occasionally result in the police withdrawing the charge or reducing the charge to a lesser offence. Alternatively, the Court can take a particular course in dealing with the pharmacological report by finding the defendant not guilty.
Improper Police Procedure
The police are obligated to follow very specific police procedures when it comes to arresting and charging a person with an alcohol related traffic offence. What this means is that often these legal procedures can be prone to human error where police fail to follow police protocol or fail to follow procedure which is relied upon in Court as evidence to substantiate the charges.
For example the police must take a breath, blood or urine sample within 2 hours after the even of allegedly operating a motor vehicle. They must also perform proper analysis on these samples in order to tender admissible evidence in Court. It is also improper for police perform breath tests on a person who is at their usual place of residence.
There are a number of issues that we will look at to determine whether or not the correct police procedure has been followed and also analyse the admissibility of the evidence produced by the police.
Honest & Reasonable Mistake Defence
Generally, a very difficult defence to succeed on, nevertheless it is a defence that does exist. Often a person will know whether or not they have consumed any substance which contains alcohol and therefore they will be unable to run this defence. However, if it can be proven by the defendant that they had no knowledge nor should they have reasonably believed that they have consumed any alcohol then this may be a defence that could be explored in further detail.
Written Representations
When lawyers refer to submitting written representations they are basically referring to the process of preparing a letter to the police specifically pointing a number of issues which appear to be deficient in the prosecutions case.
If there are some obvious defences to the drink driving charges which have been laid against you then it is a good idea to submit well crafted Written Representations seeking that the police consider the legal defences that you have on your matter and requesting that they withdraw the charges or downgrade the charges to a lesser charge.
Written Representations need to be set out in a particular way and it is a good idea to have a very concise understanding of the law in order to specifically point out to the police from a legal point of view why the prosecution will fail in Court on the existing charges that they have laid.
Written Representation do not always work and it is very difficult to guarantee exactly what position the police will take in light of receiving your Written Representations, however it is important to at least take this step before entering a plea of Not Guilty and proceeding straight to a Court trial without making an attempt to negotiate with the Police.
Our Drink Driving Lawyers have a lot of technical legal knowledge and are very experienced in putting together well prepared Written Representations in these types of alcohol related traffic matters and can assist you if you feel like you may be able to defend your DUI charges.
Police Backup Charges
Often we see that if the Police feel as though they will not be able to substantial the initial charges that they have laid on you then they may be able to bring alternate charges so long as they do this within 6 month from the time of the alleged offence. If through lack of evidence the police believe that they will not be able to succeed on a charge of PCA then they may issue an alternate charge of Driving Under the Influence (DUI) and use evidence of the arresting police officers observations at the time of the event to substantiate the charges in Court. Remember this alternate charge must be issued within 6 months of the alleged offence but it is often used by police to secure a conviction against a defendant when the police evidence doesn’t stack up.
On other occasions the police may lay a lesser charge on a defendant if the police evidence for a particular PCA reading is inadmissible or does not appear to be strong.
Examples Of Beating A Drink Driving Charge
Example # 1
For example, we recently dealt with a person who had been charged with a High Range PCA offence after he crashed his motorcycle into a parked car late at night. The ambulance came and took him to the hospital where a sample of blood was taken by the registered nurse at the hospital.
As we discussed above there is the 2 hour rule in which a sample of breath, blood or urine is to be taken, however in this instance the registered nurse failed to fill in the time in which this persons blood sample was taken. It eventually took the police almost 4 months for the blood sample to come back to the police and then for the police to lay the charge of High Range PCA. By the time this matter got to Court following an adjournment to issue Written Representations the 6 month period from the time of the alleged incident had past. This basically meant that the police were statute barred from issuing any further charges on the defendant.
On the day of the hearing we spoke with police and informed them that they couldn’t used their evidence since it was inadmissable because it simply did not prove that the blood sample was taken within the 2 hour period since the time of the accident. The police insisted that they would withdraw the charge of High Range PCA and issue a charge of Driving Under the Influence (DUI) but we politely informed the police that the 6 months had passed since the time of the accident and that they were statute barred from doing this. The end result is that the police withdrew the charge of High Range PCA and that was the end of the matter.
Obviously this was one of the more rare occasions where the time between the accident and the police laying the charges worked in this persons favour since the police could not bring a back up charge and were left with no other option but to withdraw all charges against him.
Example # 2
In another situation we have dealt with in the past we have been able to either have the PCA charges completely withdrawn or reduced to a low charge. This is a far more common example of beating a drink driving charge as opposed to the above example. This is where we have challenged the blood alcohol reading for our clients. Again such a defence will not always work but will most definitely depend upon the circumstances surrounding the alleged offence.
For example, one particular client of ours had finished work and dropped into a friends farewell party for a very short period when he was on his way home. He admittedly consumed 2 beers within the space of 2 hours but did mention that his last beer he consumed about 5 minutes before he was pulled over for a RBT. As per police procedure they waited 10 to 20 minutes before submitting him to a road side breath test. The result of the roadside breath test came back positive at 0.052 at which time he was arrested and taken to the police station where he produced a more accurate breath analysis which produced a blood alcohol reading of 0.060. The breath analysis performed at the police station took place 45 minutes after he was initially pulled over in his car which clearly meant that the alcohol in his system was on the rise.
This particular client was pulled over for the RBT only 500 meters from his home which would have taken him a couple of minutes to get there from where he was pulled over. We engaged the services of a qualified pharmacologist who was able to provide a report based upon a number of factors and scientific calculations which clearly showed that at the time of driving our client’s blood alcohol level was lower than 0.050 there by placing him under the legal limit at the time of driving.
Unfortunately the police refused to withdraw the charge of Low Range PCA after we submitted our Written Representations. Subsequently, we entered a plea of Not Guilty and proceeded to a defended hearing in Court where the pharmacological report was accepted by the Magistrate who eventually found our client to be not guilty of the charge of Low Range PCA.
We have also had other similar matters where we have engaged the professional services of a pharmacologist who has provided a report evidencing that the blood alcohol level at the time of driving was different to the blood alcohol level taken at the time of analysis. Subsequently, the police have sought to reduce the charge to a lesser charge based on this evidence and our Written Representations.
Again we have only been able to beat these drink driving matters or have the charges dramatically reduced by prudently assessing each case on its own individual circumstances and exploring the possible defences that exist.
These examples simply highlight the difference that our lawyers make in advising and analyzing each and every drink driving matter that we take on. Obviously not every case falls into a category where there is a legal defence but certainly if there is any legal defence then we will do our utmost to strenuously defend the charges pursuant to our clients instructions.
Do I need a Lawyer to represent me?
We often get asked by people whether they really need to engage the services of a lawyer to represent them on a drink driving type of charge?
There is no set answer to this question since every matter is different and contains a different set of facts and circumstances. Therefore the seriousness of each matter can be vastly different from one another but what should be understood is that drink driving and other alcohol related offences are considered to be serious criminal offences. This is because a person who drinks and drives does not only put themselves in danger by breaking the law but they also put other innocent people’s lives at risk. For this reason the Courts can deal with these types of matters with harsh penalties and sentences including a term of imprisonment for serious or repeat offenders.
So it is for this reason that we recommend that you at the very least contact a Drink Driving Lawyer to discuss your matter with them. If you feel that after speaking with a DUI Lawyer you think that you should engage a lawyer then be sure to ask them what they can do for you, how they intend to prepare a case and how much money they will charge you to legally represent them.
The other thing that is critical for a defendant to do is to choose a lawyer who has a good track record and who is experienced in the area of Traffic Law in New South Wales. There is no point in choosing a lawyer to represent you who does not often appear in the Local Courts and who has minimal experience in running drink driving matters.
Choose a good quality traffic lawyer with a good track record, ask them a lot of questions and find out how much they charge for their services.
Speak to our DUI Lawyers – Josh Boorman Ph: 1300 941 900
Our DUI Lawyers can be contacted at:
Sydney Drink Driving Lawyers | DUI Solicitors NSW
Email: jboorman@boormanlawyers.com.au
