Drink Driving Lawyers
Criminal Law - Drink Driving Offences (vic.)
By Michael Pickering - LAC Lawyers
Part 5 of the Road Safety Act (Vic.) contains six types of drink-driving offences as follows:
1 Driving or being in charge of a motor vehicle under the influence of alcohol (DUI);
2 Driving or being in charge of a motor vehicle while the blood alcohol content (BAC) exceeds or is equal to the prescribed limit of 0.05;
3 "Fail the test" offences;
4 Refusing a breath test or failing to undergo a blood sample in hospital after a motor vehicle accident;
5 Failure to have a zero blood alcohol (for Probationary license holders); and
6 An accompanying driver offence.
Penalties for blood alcohol offences usually involve fines or imprisonment or license or permit disqualification. License or permit penalties for drink-driving offences involving BAC readings vary according to the nature of the driver's BAC, prior drink-driving offences, and when the offence took place.
Conviction for more serious offences like DUI or refusing a breath or blood test, involves two years' license disqualification for a first offence and four years license disqualification for subsequent offences.
Conviction for BAC reading offences involves license disqualification on a sliding scale according to the BAC reading. The period of disqualification is doubled for a subsequent offence.
As a result of the Road Safety (Amendment) Act 2000 (Vic.), drink-drivers with readings of 0.07 or above must have their license cancelled, irrespective of whether they were issued with a traffic infringement or a summons to appear in court. Magistrates have no discretion to alter the period of cancellation. Drink-drivers with alcohol readings of 0.05 or 0.06 may retain their licenses subject to incurring 10 demerit points whereupon VicRoads has the power to suspend or cancel licenses and permits.
Whilst difficult, it is possible to challenge BAC readings successfully. These defences are generally based upon expert evidence, using the breathalyser over-estimation and rise and fall arguments. These defences are confined to offences of being in charge of a motor vehicle while the blood alcohol content exceeds the prescribed limit.
It is more difficult to challenge "fail the test" offences where a driver has, within three hours of driving or being in charge of a motor vehicle, provided a breath sample or a blood sample which, when analysed, exceeds the prescribed BAC. In relation to those offences, challenges appear to be limited to situations where the elements of the offence are not made out. In other words, defences are that the defendant was not driving; the test was not done within three hours of driving; or where the defendant can establish that the BAC was solely due to the post-driving consumption of alcohol; or the breathalyser was on the occasion not in proper working order or not properly operated.
It is also becoming increasingly common for drink-driving charges to be challenged on grounds that the Police have failed to comply with the drink-driving legislation.
It is important for clients to seek legal advice, particularly where BAC readings are alleged to be 0.07 or above.
January 12, 2011
7:13 am
Well, the simplest reason is that DUI cases are pretty complex on the law enforcement end. There are a lot of steps of officer most perform to be in compliance with the federal training on the issue. If the officer misses a step, screws up the instructions (even a minor mistake, such as forgetting a word or two) can give a defense attorney room to attack.
Now, most state courts (and federal courts) have ruled as long as the officer is reasonably close in the instructions given and how the test is performed, then it should be good to go. But the problem is also prosecutors.
In cities under 100,000 (or even smaller counties), prosecutors may be only part time and work in private practice full time. So they might not have the time, energy or willpower to full research and prosecute a DUI case. They may have no clue what the defense attorney is talking about and aren’t able to get back the evidence a defense attorney chips away at.
Lastly, a lot of DUI cases are made by inexperienced officers, officers who don’t care much for DUIs or officers that don’t do a lot of DUIs. If an officer is on dayshift for the last 4 years, then works a nightshift and lands his first drunk in literally years…. He probably isn’t going to be spot on with his field sobriety tests.
So *shrugs* it is just the nature of the beast. When you have defense attorneys who don’t do anything except study the NFTSA manual on HGN and make a lot of money taking DUIs to court, you might see them win a lot of cases.
Now the good news….. In my experience, many cities have good officers and prosecutors that actually know their stuff and can win cases. So while it may seem like *a lot* of people get off the hook on their drunk driving charges, a lot more are successfully prosecuted.
January 13, 2011
11:06 am
Please see my previous question about my brother and drink driving?
He has now been at court and is out on bail. He was apparently sitting in his car in a private car park outside his house. He was not driving at the time when I woman bumped into his car. Don’t know the exact story but he was then arrested. His lawyer has told him to plead not guilty. He had every intention of driving but thankfully did not get the chance. Does anyone know what the law in Scotland says about intent to drive?
January 15, 2011
8:10 pm
How do defense attornies win drunk driving cases?
I was just wondering how defense lawyers win drunk driving cases, especially with a video, it is fairly easy to tell a drunk person from a not drunk person I think….
January 16, 2011
10:22 pm
Although he may not have had any intention to drive the car, if he was sat in the car with the car keys, then he is guilty of being in charge of a car while under the influence.
January 17, 2011
8:49 pm
Im getting charged with drink driving, Is there a driving awareness course i can do to take time off ban ?
If there is a course that is available in scotland, can anyone tell me how to get information about it and what its called so i ca nenquire my lawyer about it ?
January 18, 2011
7:48 pm
what do i do when i got arrested for under age drink and driving?
the cop says im facing prison time..i need a good lawyer..and this is my second time doing so..and this is a bad timing. my dads sick,and he needs me? i need someones help?
January 19, 2011
10:42 pm
can you recieve a dui if you are driving a riding lawnmower police officers or lawyers only.?
I live in illinois and I heard that you can get a dui if you drive a lawnmower drunk. Can you also get a dui if you ride a bicycle drunk?
January 19, 2011
10:52 pm
No it has to be a motorized vehicle like motorcycle, car, tractor that contains an engine
January 20, 2011
7:57 pm
If you really cared about your dad, you wouldn’t be out drinking and driving, would you?
January 20, 2011
9:01 pm
Wrong Dry Dreamer, there is one, I went on one in 2000.
To answer your question, it was my lawyer who told me about it, so ask yours.
It is extremely unlikely to affect your ban, that’s pretty standard at 12 months depending on the circumstances, but if your lawyer tells the judge/magistrate that you have volunteered to go on one, they are more likely to show leniency at your trial.
Be prepared for the usual silly answers to a serious question.