• Yes. If a police officer requires you to undergo a breath test and you refuse you are committing an offence of ‘refuse breath test.’ 
• Serious penalties are provided for refusing a breath test. 
• If you have a medical condition that prevents you from completing the test you will have to present evidence to court to satisfy the magistrate of your condition. 

• All drink-driving offences upon conviction provide for license disqualification. The period of disqualification and the minimum amount of disqualification depends on the actual drink-driving charge you are facing. 
• For certain offences the police will give an ‘on-the-spot’ suspension for the offences of:
• DUI;
• mid-range and high range PCA (.08 or greater);
• refuse breath test or
• refuse blood test. 
• This suspension runs until you appear in court and have your matter dealt with. 
• The court will usually take the period of the on-the-spot suspension into account when you are sentenced. 
• In exceptional circumstances a court may record no conviction. As there is no conviction there is no period of disqualification.

• There are very limited grounds on which you can seek to have a police suspension lifted before the matter is dealt with in court. 
• In these circumstances you should consult a lawyer to discuss the matter. 
• The fact that you need a license for work would not be sufficient grounds to overturn the suspension.

• There is no provision for work licenses in NSW. 

• Any driver who is taken to hospital following a motor-vehicle related incident will have to undergo a mandatory blood test. 
• The police also have power to arrest a driver who is involved in a fatal accident or an accident which the police believe may become a fatal accident and subject the driver to a mandatory blood test.
• Where a breath analysis indicates the driver is over the limit the police must advise the driver of their right to have a blood test. 
• If a driver chooses to exercise this right the police will provide a blood testing kit. The kit contains a statement of the person’s right to have a blood test together with instructions to both the person and a doctor on the blood sampling procedures. Drivers must make their own arrangements to have the blood sample taken. 
• Sometimes blood test results can result in a higher reading than preliminary breath test results.

• Most valid challenges concern the time the breath test or blood test was taken. 
• There are time limits in which the police can breath test or blood test you. 
• If the test is taken outside the time limit you may have a valid defence. 
• Challenges based on the amount you have drunk being inconsistent with the breath test result are rare but can be possible. 
• Any challenges to a breath test or blood test require complicated legal arguments. You should consult a lawyer before considering your options. 
• There are circumstances where your excuse may be more appropriately used on a ‘guilty’ plea rather than at a contested hearing.

• Before you attend court it is important to have obtained references from people who know what you are normally like and who can attest to your good character or any unusual circumstances surrounding the offence. 
• If you have difficulty with public speaking you may wish to write a letter addressed to the magistrate explaining your actions on the day of the offence.
• The court must look at all circumstances surrounding the offence before it determines a penalty. The circumstances include: 
• your blood alcohol reading;
• any particular reason why you chose to drive;
• why you were stopped – was it a random breath test or were you involved in an accident;
• whether the offence involved speeding or seriously bad driving and
• whether the public was put at risk because of your actions.
• The court is aware of the far-reaching effects of license disqualification. Any significant effect this may have on you, your employment or other people who rely on you such as an ill family member should be mentioned to the court.
• Your employment may depend upon a licence. However this does not automatically mean you will keep your licence. 
• Your income is also a relevant feature in assessing the amount of the fine.

• An interlock device is a barrier installed in a person’s car that stops them driving if they have consumed alcohol. The purpose of the device is to enable repeat offenders to be able to drive a vehicle during the normal period of disqualification. 
• There is a standard mandatory period of disqualification following which a successful applicant can drive a vehicle fitted with an interlock device. 
• The period that the driver has to drive with an interlock device is governed by the nature of the offending PCA and prior offences.
• The cost of fitting the alcohol interlock device will be the driver’s responsibility but a concession scheme is available to eligible concession-card holders.
• While subject to the alcohol interlock scheme a driver can only drive a vehicle fitted with the device.

• Drug saliva tests can detect cannabis and amphetamines such as speed or methamphetamines such as ice. 
• Where a roadside test is positive police have the power to conduct either a further saliva test or a blood test. 
• Drivers may face charges of driving under the influence or a new offence of driving with a prescribed drug in oral fluid or blood. 
• Before charges can be laid the presence of drugs must be confirmed by laboratory testing. 
• The saliva test is mandatory and there are penalties for drivers who refuse to co-operate. 

• Jail is a real prospect for repeat offenders and those who are charged with criminal driving offences that have caused serious injury to innocent parties. 
• There have been jail sentences imposed for first offenders who have had a very high blood alcohol reading and who have been involved in an accident.

• If you are convicted of any of the drink driving offences and are required to pay a penalty you will have a criminal record.

Question

My son is 35 and facing his third drink driving charge. He is not an alcoholic but tends to turn to alcohol during times of stress. He and his wife have a disabled son which often puts a great deal of pressure on his marriage. This time he was caught driving with mid-range PCA .09 after a few drinks with colleagues after work which extended into a party. I’m not only worried he’ll lose his licence for an extended period but also that he might go to jail. His lawyer has suggested he agree to a program which I understand involves an alcohol measuring device fitted to his car but I’d like to know more about it.

Answer

• The Alcohol Interlock Program which operates in several states is a relatively new initiative to address drink driving. While it has many advantages it is not a ‘get out of jail free’ card.
• The program does allow an offender to drive under strict conditions for a set period once a shorter than usual disqualification period has been served.
• However during that set period the offender can only drive a car that has been fitted with a device that prevents the car from starting if the driver’s blood alcohol concentration reaches .02.
• It is not suitable for everybody because it involves complex legal rights and obligations which your lawyer will no doubt explain to your son.
• It is also quite expensive with all costs carried by the offender. These include installing the device and monthly calibrations.
• From a community point of view this program aims to reduce the number of repeat offenders on the road. From an offender’s perspective it allows those who have a real need for a licence to be back on the road more quickly. Perhaps even more important it also offers the offender a more holistic approach to their problem. Before an offender has the device installed the law requires them to attend a medical consultation about their alcohol consumption.
• The program is normally in place for between two and four years but the court has the power to extend that period.

Question

My solicitor wants me assessed for the Alcohol Interlock Program but I take a range of drugs to treat blood pressure, depression and diabetes. 

Answer

• The program has been running since 2003 and so far there have been no known problems. However some medicines and products such as mouthwash may contain alcohol (ethanol).
• Users are advised to read labels and wait at least 10 minutes after using such products to avoid false readings.

Question

My daughter is in her late teens and it disturbs me that she doesn’t seem to view drink driving as a serious offence. I know this because I have been at home when she has been dropped off by rowdy friends who she says have been drinking ‘’but they seemed fine’’. She plans to get her ‘L’ plates this month. How can it I get it through to her that drinking and driving don’t mix and the consequences can be disastrous?

Answer

• The teenage to mid-20s is often seen as the most traumatic period for parents of young drivers because this age group is consistently over-represented in car crashes throughout Australia. 
• Your daughter may look upon you as a nagging parent but she can’t argue with the cold hard facts revealed in authoritative studies on car crashes and the effect even a small quantity of alcohol has on the brain.
• It is estimated that alcohol is involved in about one third of serious car crashes. Even the lowest illegal level of concentration of .05 which can be reached with as little as two or three drinks in an hour doubles the risk of a crash. At .08 it is seven times the risk. These figures come from the Roads and Maritime Services official website. 
• As a Learner or P-plate driver the level of alcohol must not exceed zero. The Court is very severe on Learner or P-plate drivers caught with above zero alcohol levels.

Question

I’m a 40-year-old male and I was recently charged with DUI after several motorists reported my car slightly swerving on the highway between Queensland and the NSW Central Coast. I had been driving for five hours after my daughter’s wedding the previous night and realised I could not stay awake so pulled into a service station for a sleep. I was awoken about three hours later by police who had been given my number plate. I explained the situation but the officer said he could smell alcohol on my breath which was probably due to what I’d consumed at the wedding the previous night. He said I would be charged with DUI as too much time had elapsed for a roadside test. I’ve spoken to a few people who say I should defend the charge. It is coming up in court in a fortnight. 

Answer

You should never ‘cop it’ if you feel you are not guilty of an offence. 

• DUI is just as serious as a PCA and the penalties are just as stiff with not only a conviction and fine but also a minimum driving disqualification of six months.
• This is one case where it would be essential for you to engage us to represent you.

Question

I’ve been charged with low-range drink driving (.06) soon after I left the club. I had consumed three drinks in two hours. I’m a 39-year-old woman and only slight but I thought two standard drinks in an hour and one drink each hour after that was ok. I’m going to represent myself and was wondering if my adherence to this general rule is a defence. 

Answer

• There is no actual defence to drink driving. The amount of alcohol you consume and the reading returned on a subsequent breath analysis is different for every individual. Road safety messages long ago abandoned the two-drinks-the-first-hour-then-one-thereafter rule because it is just not true.
• A host of different factors make up your actual reading. The court will not accept that as your defence however you can use these facts as mitigating factors for a court to consider when deciding an appropriate penalty.

Question

I am a mother of two and I have been charged with a high prescribed concentration of alcohol when I was caught driving home from a friend’s 40th birthday party. I live in a country town where the local newspaper reports on most drink driving charges. I’m not so worried about myself appearing in the paper but I’m concerned about the effect this will have on my children aged 10 and 15 one of whom suffers from anxiety and depression. Can my lawyer ask the court be closed to ensure my case is not publicised?

Answer

• The court has a very limited power to close the court or at least prohibit publication of defendants’ and victims’ names in certain categories of crime. This power is mainly confined to protecting sexual assault victims or offences that identify child victims.
• A magistrate does not have the power to close court or prohibit the publication of names of offenders in drink driving matters.

Question

He is 68 and has been charged with mid-range PCA. He was stopped by police coming home from the club when he blew .09. He has been driving for 50 years with only one other offence on his record when he was caught for DUI when he was 21. I’ve never known him to drink and drive but he has become more dependent on alcohol to ease his pain and depression after my grandmother died three years ago. He plans to plead guilty but we are terrified that with the reading and his previous conviction he might to jail.

Answer

• It’s highly unlikely your grandfather is facing a jail sentence. In fact if he has been driving without being booked since his first and only driving offence nearly 50 years ago the court will treat the matter in a lenient manner. Courts view this sort of record very favourably but still they need to be convinced this was out of character and is unlikely to happen again.
• Your grandfather would be best to engage our services to put the mitigating factors in his case as strongly as possible.