Drink Driving Lawyers Melbourne | Complex Matters Require an Expert Defence
Managing Partner Dribbin & Brown Criminal Lawyers Melbourne
I want to plead Not Guilty at court in relation to Drink Driving
- Have the police correctly specified the particulars in the charge.
- Has the charge been properly initiated and are police still in time?
- Have the police correctly worded the charge, the wording of any drink driving charge is very important, see the case of Daly v Karamoshos [2020] VSC 506 (17 August 2020) which provides one example where police had not correctly worded the charge and they lost the case because of it.
- Machine user error
- Factual dispute in relation to any number of relevant facts that the police are relying upon to prove the charge.
- Police failing to provide an opportunity for a blood test following a request, or even more egregious, circumstances where a police member has applied pressure on a defendant not to get a blood test.
There may be a technical defence open to you that will support a not guilty plea and result in the charges being withdrawn.
If you have been caught drink or drunk driving and have to appear at court, it is always wise to engage a lawyer. If you are not sure whether you need one, give us a call. One of our experienced drink driving lawyers will call you back to get further details from you and assess your case. We are always happy to have a chat so at the very least you can make an informed decision about your representation.
As you can see, drink driving matters can have far-reaching ramifications and can see you severely financially impacted through loss of licence, substantial fines, potential imprisonment and further impoundment and forfeiture of your motor vehicle.
I want to Plead Not Guilty in relation to Drink Driving
Defending drinking driving charges can be more technical than most criminal cases that run in the Magistrates Court. The truth is that the drink driving laws are very strict and defending these types of charges can be difficult, but there are defences available. To be clear, just because you are going to lose your licence is not a reason to plead not guilty in relation to a drink driving prosecution, but if you have a defence, we will find it. The following is a small list of some of the things that a drink driving lawyer must consider when advising a client a client whether they have a defence;
- Have the police correctly specified the particulars in the charge.
- Has the charge been properly initiated and are police still in time?
- Have the police correctly worded the charge, the wording of any drink driving charges is very important, see the case of Daly v Karamoshos [2020] VSC 506 (17 August 2020) which provides one example where police had not correctly worded the charge and didn’t realise until it was to late.
- Machine user error
- Factual dispute in relation to any number of relevant facts that the police are relying upon to prove the charge.
- Police failing to provide an opportunity for a blood test following a request, or even more egregious, circumstances where a police member has applied pressure on a defendant not to get a blood test.
The above matters are a small representation of the types of defences available in relation to drink driving charges.
There may be a technical defence open to you that will support a not guilty plea and result in the charges being withdrawn.
If you have been caught drink or drunk driving and have to appear at court, it is always wise to engage a lawyer. If you are not sure whether you need one, give us a call. One of our experienced drink driving lawyers will call you back to get further details from you and assess your case. We are always happy to have a chat so at the very least you can make an informed decision about your representation.
What can happen at court when Pleading Guilty to Drink Driving?
Pleading guilty to drink driving and drunk driving charges listed at the local Magistrates’ Court can have a number of different ramifications:
- On a plea of guilty or a finding of guilty, significant fines can be imposed.
- On a plea of guilty or a finding of guilty there is potential for a gaol sentence to be imposed. But this all depends on the blood alcohol concentration (BAC) alleged and whether there are prior matters to consider. It important to note that some drink driving charges cannot attract a gaol sentence when dealing with a first offence, but this is not true of all drink driving offences. As an example, section 49(1)(b) of the Road Safety Act 1986 can only attract a financial penalty on a first offence, but driving under the influence section 49(1)(a) can attract gaol in relation to a first offence. Please note that a gaol sentence is open to the court in relation to all drink driving offences that are considered a second offence.
- In some circumstances drink driving charges will attract an immediate suspension of your driver’s licence, prior to the matter being listed at court. This power is enlivened per the legislation listed in the Road Safety Act starting at section 85, see below for more information on this. The time that is served off the road prior to attending court in relation to a plea of guilty must be taken into account by the magistrate when imposing the final period of disqualification.
- Following a sentence for drink driving and a subsequent period of disqualification of your driver’s licence, you will be subject to a 0.00 BAC condition on your driver’s licence and you will also be subject to an interlock condition on your licence, this interlock period will be from six months to four years, unless your charges predate the Road Safety Act changes that came into effect on 1 October 2014.
- On a plea of guilty you will face a mandatory minimum cancellation and disqualification of your driver’s licence. It used to be the case in very limited circumstances, open drivers who were over the age of 26 with no prior history and who had a BAC of less than 0.07 could avoid disqualification but this is no longer the case. Even sub 0.05 offences for people on a 0.00 BAC condition attract a mandatory minimum disqualification period of three months. This is due to the changes to the Road Safety Act that came into effect on 1 October 2014. The only offences in section 49 that do not attract a mandatory disqualification are the accompany driver offences and the specific offences listed in section 49B and 49C (see the side bar).
- Prior to the matter being listed at court, police have the power to immediately impound your motor vehicle and, on a finding of guilt, to further impound or forfeit your motor vehicle in some circumstances.
- A word of warning, a .05 BAC to .07 BAC infringement notice for first time drink driving offenders with open licences will initially attract a disqualification period of 3 months. If that infringement notice is challenged to court and results in a finding of guilt at court, the minimum period of disqualification that a magistrate can then impose is double, being 6 months. The point here is be very very careful before you challenge a drink driving infringement notice, as you could end up with double the period off the road. Our advice….make an appointment with one of our experienced drink driving lawyers prior to contesting one of these infringements, it could save you an extra 3 months off the road.
As you can see, drink driving matters can have far-reaching ramifications and can see you severely financially impacted through loss of licence, substantial fines, potential imprisonment and further impoundment and forfeiture of your motor vehicle.
If you have been caught drink or drunk driving and have to appear at court, you should engage an experienced drink driving lawyer to ensure that you achieve the absolute best outcome.
I was caught drink driving and was immediately suspended (via a section 85 notice) from driving. What can I do?
In relation to certain BAC readings regarding drink driving offences (and other offences), the police have the power to suspend you from driving on the spot. This is called a section 85B notice. It is called that because it relates to section 85B of the Road Safety Act (It was previously called a s51 notice but this is no longer the case). If you are served with one of these notices it means that you cannot drive. If you do drive and are caught driving, you will be charged with driving whilst suspended. Any time off the road you do as a result of a section 85 or 85B suspension before attending court must be taken into account by the Magistrate.
It is possible to appeal a section 85 notice per section 85S, but it is not easy. Given that any time you do off the road will be taken into account later, sometimes there is no point (i.e. you will have to do the time eventually if you are pleading guilty and therefore may not want to spend the time and money delaying the inevitable).
In other circumstances you might be pleading not guilty to your drink driving charges or just need time to make arrangements. In these circumstances, it might be in your interests to challenge the section 85 or 85B notice and get back on the road immediately. Per section 85S of the Road Safety Act, a defendant must show exceptional circumstances before a Magistrate is permitted to overturn a notice issued under Part B Division 1 of the RSA. It is a high bar to overcome, but not insurmountable. A notice must be served on the chief commissioner 14 days before the application is heard. It is highly advisable to engage our office if you intend on lodging an appeal against a section 85 or 85B notice, as the reasons must be set out in the notice.
Conviction vs non-conviction when pleading guilty for drink driving and drunk driving offences – What’s the difference?
If you plead guilty at the Magistrates’ Court in relation to drink driving you can be sentenced with or without conviction. What does this mean? Previously it didn’t mean a great deal but that has now changed with the introduction of the spent conviction bill. It used to be the case that whether you were sentenced with or without conviction, the offence would still appear on a record check.
This new legislation now makes it more important than ever to engage a lawyer that understands how to successfully make a section 8 submission on your behalf, so as to invite the magistrate to not record a conviction. The difference between a conviction and no conviction being recorded, could be quite substantial if your employment depends on a clean record being maintained.
It is important to note that although a traffic infringement for drink driving is technically with conviction, the Victorian Spent Conviction legislation makes it plain that a traffic infringement notice will be a conviction that is immediately considered a spent conviction and therefore not appear on a record check, unless one of the exceptions applies. What does this mean? It used to be the case that some lawyers (not us) would advise clients to contest a drink driving infringement to argue for a non-conviction. Because of this new legislation, that is no longer necessary.
Dribbin & Brown Drink Driving Lawyers are well versed in making section 8 submissions to the court, so if having no record is important to you, you should engage one of our experienced traffic lawyers to represent you. For more information on the meaning of non-conviction vs conviction please click here.
How do I get my licence back if it has been disqualified? Do I have to go back to court?
It used to be the case that all drink driving matters would come back before the court for a relicensing application. This is now not the case. In most circumstances you will need to attend VicRoads, unless the offence relates to drug driving or a serious motor vehicle offence involving alcohol or drugs.
If you have to come to court to obtain your licence back you will need to list the application at the Magistrates’ Court 30 days prior to the date that you are due to get your licence back. During that 30 day period you will have to complete the drink driver’s education course and also will have to be interviewed by police in relation to your original offence. Police will then provide a report to the police prosecutor at court advising of their position in relation to whether you should get your licence back. You will then apply to the magistrate or judicial registrar for a licence eligibility order or (LPO).
Why engage a lawyer in relation to drink driving charges?
Court can be an intimidating place, particularly for the unrepresented or first time defendant. The court staff, prosecutors and magistrates are all unfamiliar. That is why it is so important to engage lawyers who have experience representing clients charged with drink driving and DUI charges at the Magistrates’ Court where you must attend.
Drink driving law is complex. You could be walking into a hornet’s nest and not be aware of it until it is too late. We have represented hundreds of clients in the County Court, trying to repair damage that occurred in the first instance at the Magistrates’ Court. This commonly happens when clients either choose to represent themselves or initially engage inexperienced lawyers. Don’t make this mistake.
Why Dribbin & Brown?
- Dribbin & Brown Drink Driving Lawyers all have significant experience representing clients charged with drink driving and drunk driving offences.
- Our lawyers care about what happens to you, and consider all factors relevant to getting you the best outcome. This ethos filters down from the top.
- We have represented thousands of clients over the years charged with drink driving. It is this experience that counts.
- We have appealed matters all the way to the Supreme Court on an error of law and been successful in relation to technical defences regarding drink driving.
- All our lawyers attend regular continuing professional development and other training events specifically relating to drink driving.
- Dont take our word for it, read our google reviews, all reviews are from real clients sharing their experience with our lawyers.
If you have been charged with drink driving or drunk driving, please select the office closest to you and contact us today.
- On a plea of guilty or a finding of guilty, significant fines can be imposed.
- On a plea of guilty or a finding of guilty there is potential for a gaol sentence to be imposed. But this all depends on the blood alcohol concentration (BAC) reading and whether there are prior matters to consider. It important to note that some first-time drink driving charges cannot attract a gaol sentence, but this is not true of all offences. As an example, section 49(1)(b) of the Road Safety Act 1986 can only attract a financial penalty on a first offence, but driving under the influence section 49(1)(a) can attract gaol in relation to a first offence. Please note that a gaol sentence is open to the court in relation to all drink driving offences that are considered a second offence.
- In some circumstances drink driving charges will attract immediate suspension of your driver’s licence, prior to the matter being listed at court, this is per the new legislation listed in the Road Safety Act at section 85, see below for more information on this.
- Following a sentence for drink driving and a subsequent period of disqualification of your driver’s licence, you will be subject to a 0.00 BAC condition on your driver’s licence.
- Following a sentence for drink driving and a period of disqualification from driving it is likely that you will be subject to an interlock condition on your licence, this can be from six months to four years, unless your charges predate the Road Safety Act changes that came into effect on 1 October 2014, which is possible if your matter is very old and had gone to warrant.
- On a plea of guilty you will face a mandatory minimum cancellation and disqualification period of your driver’s licence. It used to be the case in very limited circumstances, open drivers who were over the age of 26 with no prior history and who had a BAC of less than 0.07 could avoid disqualification but this is no longer the case. Even sub 0.05 offences for people on a 0.00 BAC limit attract a mandatory minimum disqualification period of three months. This is due to the changes to the RSA that came into effect on 1 October 2014. The only offences in section 49 that do not attract a mandatory disqualification are the accompany driver offences and the specific offences listed in section 49B and 49C (see the side bar).
- Prior to the matter being listed at court, police have the power to immediately impound your motor vehicle and, on a finding of guilty, to further impound or forfeit your motor vehicle in some circumstances.
- A warning, a .05 BAC to .07 BAC infringement notice for first time drink driving offenders with open licences will attract a disqualified period of 3 months. If that infringement notice is challenged to court and results in a finding of guilt at court, the minimum period of disqualification that a Magistrate can then impose is double, being 6 months. The point here is be very very careful before you challenge a drink driving infringement notice as you could end up with double the period off the road. Our advice....come in for some advice, it is not worth saving the money that an appointment would cost but then ending up with an extra 3 months off the road.
