Many people think that just because they have been charged with drink driving (often referred to as a PCA or DUI charge) that they have no option but to plead guilty to the charge.

This is a misconception. There are a number of ways to beat a drink driving charge.

So how can you defend a PCA (Prescribed Concentration of Alcohol) charge? The most common reasons for defending PCA offenses are:

1. Honest and reasonable mistake
2. Blood alcohol level was lower at the time of driving
3. Police procedure has not been properly complied with

Honest and reasonable mistake

It is a defence to a PCA charge if you honestly and reasonably believed that you were under the legal limit when you were driving.

Once this defence is raised, it is for the prosecution to prove that the mistake was either not honest or not reasonable. Although in theory this can seem like a simple exercise, in practice, depending on the circumstances surrounding the case, it can sometimes prove a little more difficult for a Court to accept that the mistake was reasonable.

Lower blood alcohol level

The breath-testing instrument used by police at the side of the road does not give an accurate reading of a person’s blood alcohol level. The police cannot rely on the result to charge you with a PCA offence. A positive reading, however, allows police to arrest you for the purpose of submitting you to an official breath analysis (either at a police station or at a nearby mobile booze bus) on a different instrument. It is only the result of the breath analysis taken after your arrest that the police can rely on.

However, as we know, the offence is driving whilst over the legal limit This means that your blood alcohol level while you were actually driving that really matters.

It is common knowledge that a person’s blood alcohol level rises and falls over time, even if the person has stopped drinking. It is therefore also common that, given that there is often some time lapse between being pulled over, arrested and eventually submitted to the official breath analysis, your blood alcohol level at the time the official reading is obtained is different from what it would have actually been at the time of driving.

It is therefore sometimes possible for us to prove, through the use of a pharmacologist professor, that although a person’s blood alcohol level was above the legal limit at the time of the “official” breath analysis, it would have in fact been lower than the legal limit at the time of driving. Therefore, they cannot be found guilty of drink driving, o

Through the same process, we can also successfully have a High Range PCA charge reduced to a Middle Range and a Middle Range PCA charge reduced to a Low Range. This can result in a major difference in fines that you could receive and more importantly, periods of licence disqualification. Factors that will be considered are what you ate, how much you drank, your weight and your height.

Police not complying with procedure

Certain procedures need to be followed by police when they arrest and charge someone with a drink driving offence. The procedures to be followed are governed by NSW law. There are two particular procedural requirements that police are meant to comply with and not complying with these procedures can sometimes result in a person successfully defending a PCA charge.

Two requirements or “rules” that need to be adhered to are known as the “two hour rule” and the “home safe rule”.

The two hour rule

There is a requirement that the police are to obtain a breath analysis result (different to the roadside breath test) within 2 hours from the time a person was driving. The police cannot force you to submit to a breath test if 2 hours have passed from the time of driving.

Therefore, if the police have obtained a blood alcohol reading more than 2 hours after you were last driving, then it is possible for that evidence to be excluded from court proceedings. This would then mean that the police would have to rely on some other means to prove your level of intoxication whilst driving. In practice, this is near impossible.

The home safe rule

This rule states that the police cannot require you to submit to a breath test when you are at your home. The definition of what constitutes your “home” is not simple and the area that may be encompassed by the definition can vary depending on the type of place of residence.

In any event, just as with the two hour rule, it is possible to have evidence obtained after you have been submitted to a breath test at your home thrown out of Court.

Author Bio: Emmanuel Apokis has many years experience in Traffic Law working with the experienced Traffic Lawyers at Prime Lawyers in Sydney.

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