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    A complete guide on how to beat a drink driving charge including what the prosecution have to prove and available defences

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      how to beat a drink driving charge

      How to beat a Drink Driving Charge

      A common question criminal lawyers face is how to beat a drink driving charge. While many people are aware of the repercussions of drink driving, there is less knowledge about possible defences.

      While you may feel the only option available is to plead guilty and accept the consequences, this is not always true.

      How to beat a drink driving charge

      You can beat a drink driving charge by arguing one of the following defences:

      1. The Two Hour Rule
      2. The Home Safe Rule
      3. Unsafe Reading / Challenging Reading
      4. Honest and Reasonable Mistake
      5. Police cannot prove you were Driving

      If you believe any of these defences to drink driving are available to you, then your criminal lawyer can draft representations to police to get the charge withdrawn. Representations are a legal document which sets out the legislation and case law applicable to your case. It generally takes police 6 weeks to determine whether they will accept representations.

      The Two Hour Rule

      The ‘two hour rule’ requires police to conduct a breath test or breath analysis within 2 hours of the person driving pursuant to clause 3(1) of Schedule 1 of the Road Transport Act 2013.

      Just as citizens have to follow laws, police officers also have legislation which regulates how they carry out their operations. Police have a fundamental obligation to obtain a breath analysis certificate within a period of two hours of the last known act of driving (or, attempting to put the vehicle in motion).

      If a police officer performs the test outside these 2 hours, or if they cannot prove that the test was taken within 2 hours of driving, then the breath analysis certificate cannot be used as evidence of your blood alcohol content. Police would have to use some other means to prove that your prescribed concentration of alcohol (PCA) was over the limit, which would be very difficult.

      The Home Safe Rule

      The ‘home safe’ rule prevents Police from performing a breath analysis or breath test on you if you are at your usual place of residence. Clause 2(1)(e) of Schedule 3 of the Road Transport Act makes such a procedure is unlawful and any breath analysis or breath test results may be inadmissible in Court.

      It is important to note that the term ‘home’ is not limited to just the house that you live in, it encompasses your whole property including your driveway and sometimes the attached parking area if you live in an apartment complex.

      Unsafe Reading / Challenging the Reading

      The unsafe reading defence is where you argue that the blood-alcohol result police rely on is inaccurate and your actual blood alcohol level at the time of driving was lower than when the breath test or breath analysis was taken.

      This defence requires an expert pharmacologist to give evidence both in a report and at court as to the likely blood alcohol concentration (BAC) at the time you were driving. If the expert evidence shows that your BAC was below the prescribed limit, then this can result in the charge being withdrawn or replaced with a less serious charge.

      The outcome of this defence varies depending on the severity of the charge. The charge may be withdrawn, the charge may be reduced to a lower level (for example, from High Range to Mid Range) or a lowered fine or penalty may result.

      A common example of this is where an offence of drive with high range PCA is replaced with drive with mid-range PCA. This can result in a much lower penalty, reduced disqualification periods and in some cases, a Section 10 for drink driving.

      The basis of challenging the reading is that a person’s BAC varies over time. Even after a person has stopped drinking, their BAC can continue to increase. This could lead to a situation where your BAC at the time of driving was much lower than when the breath analysis was conducted.

      This defence to drink driving is often successful where the breath analysis reading is close to the prescribed limit (eg. 0.051, 0.081, 0.151). In such cases, this defence would have much stronger prospects of success than otherwise.

      Honest and Reasonable Mistake

      Honest and reasonable mistake of fact is a legal defence to a strict liability offence. An accused will be not guilty of an offence if they held a genuine belief on realistic grounds that a certain fact existed at the time of the offence, which if true, would mean they were not committing an offence.

      For a drink driving offence, this requires you to establish that you held a genuine belief that you were under the legal blood alcohol concentration when you were driving.

      This defence will fail if the prosecution proves that the mistake was either not honest or not reasonable. While it is simple to prove the ‘honest’ element of this defence, it is often more difficult to prove that choosing to drive after drinking was reasonable using the ordinary person test. This is because of the increasing prominence of commercials against drink driving like “RBT means you need a plan B.”

      However, if the defence is based on ‘drink spiking’, the chances of being acquitted increase. In practice, this is difficult to establish as there will need to be some independent evidence that your drink was in fact spiked. It is easier to establish when working out how to beat a drug driving charge.

      Police cannot prove you were driving

      This defence is based on the legal definition of driving. The definition of driving is attempting to put the vehicle in motion’ pursuant to Section 112(1) of the Road Transport Act 2013 (NSW). In some instances, this definition may not align with the actual conduct of the driver. For example, turning on the car solely to put the air conditioner on cannot be considered ‘driving’ under this legislation. Unless it can be proven that the intention of the person was to put the vehicle in motion, the charge will not succeed.

      You can also be found to be driving if you occupied the driver’s seat of a vehicle and were in control of the steering, movement or propulsion of a vehicle. This defence may not be relevant for every drink driving offence since most PCA offences are charged by way of a random breath test. This would allow officers to observe you both in the driver’s seat of a vehicle and putting the car into motion.

      Drink Driving Lawyers

      Experienced drink driving lawyers will be able to advise you on whether any of these defences are applicable to you. You can contact Astor Legal on (02) 7804 2823 or email us at We will usually be able to identify what the best course of action for your case is through an initial consultation.

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