The blood alcohol limit in Australia is 0.05 for fully licensed drivers, however learner or probationary drivers (or special licence holders like truck or public train drivers) have a limit of zero.

     What you need to know about breathalyser tests: 

• A police officer can ask anyone driver a vehicle of any kind (car, motorcycle, truck) to take a breath test.
• Refusing to take a breath test is considered an offence, so while you can refuse, you may be charged with another offence that could see you with a $4,000 fine or six months in prison.
• Don’t try to cheat by blowing softly – you aren’t the first person to ever try this, and it could be taken as you refusing to take the breath test. Do it properly.
• The lower punishment range for being over the legal blood alcohol limit is $1,400 and/or three months in prison.
• Police can test a passenger if they reasonably believe that they were driving at the time (seat switching).

     When a police officer cannot request a breathalyser test:

• When you are at home and they have no reason to believe you have been driving in the past three hours (two hours in some states).
• For medical reasons, however if a doctor agrees to the test being done without affecting your medical condition, the test can be performed.
• If the time between when you were driving and when the test is requested was not in the previous three hours, police may not request a test, but only in Victoria. In Queensland and New South Wales, the time limit is two hours from when you drove the vehicle.

     If the breath test result is negative
If the test is negative, but the police officer believes you are under the influence of drugs, a further drug test may be requested. Another test may be requested if you fall into any zero-limit categories. Otherwise, you are likely to be free to go.

     If the breath test result is positive
What happens next will depend on how much over the limit your test was, and whether any damage occurred as a result. You may have to leave your vehicle where you are and pick it up later, or it will be towed away. You will be liable for towing expenses and police impound fees if this is the case. You may be driven home by the police, get a taxi home, or someone will have to come and pick you up. If you are being arrested, call your lawyer immediately, otherwise get in touch at the next convenient time to discuss your case and how to proceed. If you are arrested, once you are charged you will either be sent to a prison or sent home.

     If you disagree with the test results
If you disagree with the breath test results, you can legally request a blood test at the time, and it must be provided. You can also contest the results if you believe there was a faulty instrument, an incorrect test result, the time limit after driving was passed, it was not medically approved, or you believe the test was administered incorrectly. You will likely need a lawyer to take your case to court to contest your blood alcohol reading and test, because you will need expert evidence.

     Get legal advice immediately
As soon as you find yourself with a positive breath test, get in touch with Vanessa Ash and Associates for advice.

What to do if you are arrested

     Defending a drink driving charge in court
Fighting a drink driving charge does not mean trying to prove that the breath test was wrong. Most successful outcomes in drink driving cases do not involve challenges to the accuracy of the breath test. You are presumed innocent, so you do not actually have to prove anything in the case, but to defend yourself – the prosecution must prove their case, not you. The role of your defence lawyer is to challenge the validity of their case against you, not to provide evidence of our own.

     But the breath test was wrong! 
The law says the breath test is right, with us having to prove that it is wrong. One such defence is that the breath test machine was not properly operating or in working order at the time, which can be done with the blood test that shows blood alcohol concentrations below the legal limit at the time. There is no other way to prove the breath tester is wrong without a blood sample within an hour or two of the breath test. This makes most cases trying to prove the equipment was wrong a waste of time.

     So let’s test the police’s breath testing machine!
Police do not allow independent testing of their Drager 7110 breath testing machine. If a court has demanded they make it available, police have asked for thousands of dollars to cover what they say are the costs to recalibrate the machine, which just causes extra unnecessary costs and acts as a deterrent. We do not need to challenge the breath testing machine to be successful in a drink driving case.

     But I wasn’t drunk!
You are not allowed to claim that you were sober unless you had a blood test, except if you can prove that the drinks you had were after you stopped driving. How much you had to drink is usually irrelevant.

     But I got a  blood test!
Getting a blood test at the time probably won’t improve your chances of getting your licence back, but an unhelpful result will not make your problem worse. You may need to pay a nominal cost to get the nurse or doctor to take the blood. If you are deterred from getting a blood test by the police, make sure you tell your lawyer. This is illegal.

     Defence – the police not following proper guidelines
You can be acquitted of almost any offence where it can be demonstrated that the police did not follow proper procedure at some point. You need a skilled lawyer to follow up on this. If the police fail to prove they have followed proper guidelines, failed to comply with time limits, failed to correctly sign, date, issue, file or serve court papers, their case may be unsuccessful. If the police cannot prove they have followed protocol, the case may not get very far and the case is closed without charges.

Sometimes a driver may have not been driving at the time, police did not treat the person according to law, the driver was not tested within three hours of driving, or they can somehow prove they were sober at the time, another defence may be applicable.

     Plead guilty or not guilty?
Pleading guilty may result in the loss of your licence by default. The court cannot help you, though you can apply for a special circumstances exception, for example if you need to drive for your job or as part of your family’s care. Some circumstances warrant pleading guilty, while others do not. Speak to your lawyer for advice. If you plead not guilty, your case will get another hearing in a few months’ time. You can always change your mind. 

Call Vanessa Ash for expert advice on drink driving charges.