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Understanding Law: DUI and the holiday season

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So often, people assume that drink driving is an offence limited to young and inexperienced drivers – but this is not the case.

Having worked at the ACT Magistrates Court, it’s my experience that although offenders do include younger drivers, the majority are actually older drivers who usually say they felt okay to drive after a couple of drinks.

A common misconception, particularly as we approach the festive season, is that counting drinks over a period of time will ensure you are fine to drive. For example, some people believe that if they consume one drink per hour and then leave an hour between their last drink before they hop in the car, they will be fit to drive.

This method is very unreliable in that it is so difficult to determine whether that one drink was actually a standard drink – often it is more.  Secondly, this method doesn’t account for the way in which alcohol affects different people in different ways and the differences in body types. Many drink driving offenders say that they have relied on this method and thought that because it is assumed to be reliable in many circles, that it will prevent them from being caught drink driving.

What are the factors that are used to convict someone of a DUI? 

To be convicted of drink driving it must be proved that:

  • You were a driver of a motor vehicle; and
  • You had the prescribed concentration of alcohol in your blood or breath.

For most people, the prescribed concentration is 0.05g or more of alcohol per 100ml of blood which would result in an offence. “Special” drivers however, are subject to a lower concentration threshold. Learner drivers and provisional licence holders for example, cannot have any alcohol at all in their system.


What is the first thing you should or shouldn’t do when stopped for a breath test? 

When you are stopped for a breath test, be it random or otherwise, it is important to remain calm and cooperate with the police officer. You will need to provide your correct name and address and provide your licence for inspection. The police officer will direct you through the testing process from here. It is important to remember that it is an offence to refuse to participate in a blood test.

At what point should you call a lawyer? 

It is recommended that you call a lawyer as soon as possible after you become aware that you have a positive test. This will enable:

  • You to be informed of your rights from the outset;
  • You to be informed of the process;
  • Your lawyer to identify any mitigating factors as early as possible; and
  • You to obtain materials in support of your matter such as letters of reference.

Again, once you receive a summons from the police to attend court, you should provide it to your lawyer as soon as possible. It is never desirable to wait until the last minute to get legal advice!

What are your legal rights in the situation?

The police have a general power that enables them to request any driver of a motor vehicle to undergo a form of alcohol screening test. When you are stopped you must remain at the testing site until the police officer directs you to move on. It is an offence to fail to comply with any of the police officer’s directions while you are directed to remain at the testing site and you can be taken into custody for non-compliance. Sometimes when you are pulled over a screening device may not be readily available.

If the police officer suspects you to have alcohol in your system you are required to comply with a direction to remain at the testing site to enable a test to be carried out, however, you cannot be held for longer than 30 minutes. If you are involved in a motor vehicle accident a police officer can request that you undergo an alcohol screening test, with which you must comply. If you leave the accident site and the police officer suspects on reasonable grounds that you were the driver and that you left the scene you can still be directed to undergo an alcohol screening test, however, time limits do apply.

Caught drunk man

What will a Baker Deane and Nutt lawyer do for their client once they make the call for a DUI charge? 

When you call our firm, we will:

  • Arrange a meeting with you so that we may ascertain the circumstances of the alleged offence;
  • Inform you of the Court processes;
  • Provide advice on prospects and the likely outcomes, including for instance, whether you are eligible for a restricted licence;
  • Advise what materials and/or information we need to support the best possible outcome; and
  • Represent, assist and support you through the Court processes.

Will you have to go to court? If so, what is the process?

If you receive a summons to attend Court in relation to a drink driving offence in the ACT you will be required to attend the ACT Magistrates Court. The first appearance will be before a Registrar. At this time you will usually be formally charged with the offence (s). It is then usually necessary to indicate your intention to either plead guilty to or to defend the charges.

If you wish to plead guilty, then your matter will be listed before a Magistrate for sentencing either that same day, or a short time in the future. If you wish to defend the charge(s), the Registrar will list your matter for a Listing Hearing a short time in the future so that directions can be made to bring the matter to a point where it is ready for formal hearing.

Do you have to engage a lawyer?

By engaging a lawyer you can be sure that you have the best chance of achieving a good and fair outcome. You have the benefit of a professional who is familiar with the process advocating on your behalf. By having a lawyer you can be confident that all of the relevant facts surrounding your case are put to the court in a concise and logical manner.

If you do not engage a lawyer you will be required to represent yourself. This is often a daunting process and many self-represented litigants struggle to present their case as they are unsure what is relevant and what is not. Consequently, their cases do take longer and require the magistrate to ask them direct questions.

law and scales and gavel

What are some examples of the penalties people face for a DUI? 

The penalties for a person found guilty of a drink driving offence vary depending on whether they are a first or repeat offender and their blood alcohol reading level. When sentencing the Court will take into account whether there were any aggravating factors surrounding the commission of the offence, for example if the offending occurred in a school zone, or with other passengers in the car who were put at risk. The Court will also look to whether there were any mitigating factors that would support a less severe sentence and will consider the offender’s personal circumstances including their background, employment, character, financial circumstances, demonstration of remorse, and the effect the sentence will have on their dependants.

Once the Court has considered the above the following sentences can be delivered:

  • Licence disqualification: Most DUI charges lead to a period of licence disqualification. The exact period depends on the seriousness of the offence and the presence of aggravating and mitigating factors and can range between one month to three years.
  • Fines: Most DUI charges result in the imposition of a financial penalty. The exact amount depends on the seriousness of the offence and the presence of any aggravating and mitigating factors.
  • Non-conviction order: In rare circumstances, the Court may find a person guilty, but use its discretion not to record a conviction. Importantly, if this occurs, you will not lose your licence. It is difficult to achieve a non-conviction order and the Court will have very close regard to the seriousness of the offence, the offender’s character and any extenuating or relevant factors.
  • Good-behaviour order: The Court can order that the offender sign an undertaking to be of good behaviour i.e. not commit any further offences, or breach any conditions of the order within a period of time. If, following the imposition of such an order the offender breaches its conditions, the offender may be re-sentenced for the original offence.
  • Imprisonment: Imprisonment is an option that is usually reserved for extremely serious offences and repeat offenders. Terms of imprisonment can range from six – 12 months and can be imposed in conjunction with a fine.

For more information on Baker Deane & Nutt Lawyers, visit www.bdn.com.au

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