You web browser may not be properly supported. To use this site and all its features we recommend using the latest versions of Chrome, Safari or Firefox


If you’ve been charged with a drink driving or drug driving offence, such as Exceed .05 or Drive Under the Influence (also called “DUI”) the consequences can be serious. As well as fines, you may face potential driving disqualifications and other penalties that can cause you expense, inconvenience and other hardships.

If you have been charged (or think you might be charged) with an offence of this kind, you may find yourself in a situation where you are considering pleading “not guilty” and defending the charge.

While it can be hard to beat a drink or drug driving charge, there are defences available. Below is a rundown of some of the instances where you may be able to defend a charge like this.

Note: Drink and drug driving laws differ from state to state, and there can be consequences for pleading “not guilty” in a case where you are later convicted. The material below is not intended as legal advice and we recommend that you consult a lawyer in your state before you are scheduled to attend court.

Power to Breathalyse

Police who administer roadside alcohol or drug tests have very broad powers, however if Police overstep the mark, they may not be able to use the test results as evidence against you. Situations where this may apply include:

  • Where police wrongly believe you were the driver of a vehicle
  • Where police wrongly believe you were involved in an accident
  • Where an amount of time has passed between your act of driving and Police administering the test.

If the Police have gone beyond their powers in breathalysing you, you may be able to successfully defend a charge of drink or drug driving.

Note: You should be aware that the consequences of refusing to submit to a test are often more serious than the consequences of failing one. If Police are requiring you to submit to a test, you should comply with their requirements, perform the test and seek legal advice afterwards.

Delay in Administering a Test

If Police have to take you to a second location to administer a breath or blood test, they have an obligation to carry out the test within a period set down by the law. This period varies from state to state but is generally two or three hours.

If there are long delays between Police taking you in to custody and a test being administered, this may be a defence to a drink or drug driving charge.

Challenging the Reading

Police drug and alcohol testing is generally carried out using technical instruments, however from time to time, these instruments may be inaccurate. They may not be properly calibrated or they may be faulty, causing them to return incorrect results. There are several ways that you may be able to challenge test results, including:

  • Checking that the instruments which Police used were correctly maintained and compliant.
  • Where a blood sample has been provided to you, having that sample re-checked by an independent analyst.
  • Providing specialist medical evidence that the test result is incorrect.

If you believe that a reading from a Police breath or blood analysis is wrong, you may be able to defend a charge of drug or drink driving.

Mistake

Most of the time, being mistaken about the presence of drugs or alcohol in your blood will not be a defence to a charge. However, in rare circumstances you may be able to argue that you made an “honest and reasonable” mistake.

Circumstances where this may be available to you include:

  • Where you ingested drugs or alcohol without your knowledge.
  • Where you had a medical condition which might alter your body’s reaction to drugs or alcohol.
  • Where so much time had passed between you ingesting the substance and you driving that it was reasonable to think that you were OK to drive.

If you believe you may have made an honest and reasonable mistake with regards to a drink or drug driving incident, it is worth contacting a lawyer in your state before you attend court.

Driving Under the Influence

“Driving Under the Influence” is a more serious charge than the more common drink driving or drug driving charges, and generally carries a heavier penalty.

In some states, it is not enough for Police them to simply show that you had alcohol or drugs in your body, they also have to prove that you were incapable of properly controlling your vehicle.

If you have been charged with Driving Under the Influence, you may want to seek legal advice regarding whether you have a prospect of defending this charge.

Hardship of Extraordinary Licence Applications and Special Circumstances

Some states permit disqualified drivers to obtain an “extraordinary licence”, “restricted licence”, “hardship Licence” or “work Licence” if being unable to drive would result in special hardship. These Licences can only be obtained in certain circumstances, such as:

  • If your disqualification from driving licence would cause severe hardship to yourself or;
  • If your disqualification from driving would cause severe hardship to others around you.

Similarly some states allow a Magistrate to vary the standard penalties in “special circumstances”. If you think that this applies to you, you should seek legal advice prior to entering a plea.

Conclusion

It is important to remember that courts take charges of drink or drug driving very seriously. If you are considering contesting one of these charges on a technical basis, it is important that you get the right advice as soon as possible.

The contents of this blog post are considered accurate as at the date of publication. However the applicable laws may be subject to change, thereby affecting the accuracy of the article. The information contained in this blog post is of a general nature only and is not specific to anyone’s personal circumstances. Please seek legal advice before acting on any of the information contained in this post.

Thank you for your feedback.

Related blog posts

Criminal Law
Snap Decision

It's fair to say the selfie and candid snaps have become staples of social media photography, and in a time where over 75% of Australians have a smartphone, everyone is their own photographer and publisher. So what’s the harm in taking a picture, or sharing it on the internet? Before you reach for your phone or camera (normally one in the same), you need to be aware of your surroundings. Whilst generally in public places you can snap away, being on private property while taking a picture without the permission of the landowner may result in charges of trespass. It also bears remembering most modern phones and cameras are also GPS enabled and “geotag” pictures taken with them. This...

Group Selfie Resized
Criminal Law
Gumtree and Stolen Goods

While advertisers may have spun “it’s a steal” into a sales pitch we are all too familiar with, if you’re not careful in the world of private sales that may be exactly what you get. Gumtree is one of the most well-known classifieds site with its primary purposes allowing people to buy and sell from each other. Whilst this gives tens of thousands of people the freedom to sell unwanted property they’ve gotten over the years, it’s increasingly becoming a quick and easier way for criminals to turn their ill-gotten gains into cash. The terms of use of Gumtree, and many sites like it, restrict their legal liability to any sales conducted over their platform including any conduct by a...

Criminal Law
Trick or Treat: Avoid a Nightmare on Halloween

Halloween has become an increasingly popular event in the Australian calendar — and has captured the imagination of lolly-loving kids to partygoers who enjoy a costumed affair. In the midst of all the excitement it can be easy to get carried away in the atmosphere. Here are a few tips to stay on the right side of the law and ensure the only fallout is a nervous visit to the dentist. An increasing amount of households are getting on board with Halloween, leaving out lollies and decorations, but there are still many who just aren’t interested in participating. If the kids are out trick or treating it’s important they know that if someone isn’t interested in handing out treats, a...

We're here to help

Start your online claim check now. Or, if you have a question, get in touch with our team.