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Defending against a drink driving charge in Australia can be daunting. In New South Wales (NSW), the law takes a firm stance on drink driving, with Section 112 of the Road Transport Act 2013 outlining the offence of Driving Under the Influence (DUI). Penalties can include imprisonment, license disqualification, fines, and the installation of interlock devices.

However, defences such as the “honest and reasonable mistake” or challenging police procedures, like the “two-hour rule,” can lead to successful outcomes. Seeking help from a traffic defence team, such as Jameson Law, can provide expert guidance through the legal process, potentially resulting in dismissals or conditional release orders without convictions.

DUI Legislation in NSW

In New South Wales (NSW), the law takes a firm stance on drink driving, and the main rule is found in Section 112 of the Road Transport Act 2013. This section defines the offence of Driving Under the Influence (DUI), where it’s illegal to drive or attempt to drive a car while influenced by alcohol or drugs. The term ‘drug’ here includes prohibited drugs, substances that can mess with your normal thinking or physical abilities, or any other substances outlined by the rules. That means a DUI arrest

The consequences for a DUI offence vary based on whether it’s your first major traffic offence in the last 5 years. Penalties can include imprisonment, losing your license, fines, and even having to install an interlock device in your vehicle. There are also defences available, like if you genuinely didn’t know you were affected or if you were forced to drive due to an emergency. If you find yourself facing these charges, seeking help from a traffic defence team, such as Sydney Criminal Lawyers, might be a smart move. They can guide you through the legal process and explore options like dismissals or conditional release orders without convictions. Understanding these rules helps everyone play a part in keeping our roads safe.

What a DUI Defence Attorney can do

If you find yourself facing a DUI (Driving Under the Influence) charge in Australia, hiring a skilled DUI defense attorney can be a crucial step in navigating the legal complexities and minimizing the potential consequences. A knowledgeable DUI lawyer possesses a deep understanding of the specific laws governing drink driving in Australia, ensuring that you receive expert advice tailored to your case.

Firstly, a DUI lawyer can assess the evidence against you and identify any potential weaknesses or errors in the prosecution’s case. They are adept at challenging the reliability of breathalyzer or blood test results, questioning the legality of the traffic stop, and examining the procedures followed by law enforcement officers during the arrest. This thorough scrutiny often forms the basis of any strong DUI defenses.

Furthermore, a DUI attorney can guide you through the legal process, explaining the potential outcomes and assisting you in making informed decisions about a drink driving offence. They may negotiate with the prosecution for reduced charges or penalties, aiming to secure the best possible resolution for your case.

Additionally, in situations where alternative sentencing options are available, such as diversion programs or rehabilitation, a skilled attorney can advocate for these alternatives, potentially sparing you from severe consequences like license suspension or imprisonment.

Overall, the expertise of a DUI attorney plays a crucial role in safeguarding your rights, minimizing penalties, and navigating the legal intricacies associated with a DUI charge in Australia. Contact Jameson Law today for your best chance of fighting a drink driving charge. Remember, we are in it to win it!

Prescribed Alcohol Limits

It is incredibly important to understand the limits on what a driver’s blood alcohol content can be. This better helps us understand the severity of drink driving charges that he or she will face. NSW has three blood alcohol limits for drivers: zero, under 0.02 and under 0.05. The limit that applies to you depends on your licence and the type of vehicle you are driving.

In New South Wales (NSW), the Road Transport Act 2013, outlines various drink driving offences based on prescribed concentrations of alcohol in a driver’s breath or blood. Section 198 of the Act categorizes these concentrations into different ranges:

  1. Novice Range: Offence: Learner or provisional driver with a blood alcohol concentration between 0.001 and 0.019.

  2. Special Range: Offence: Learner or provisional driver with a blood alcohol concentration between 0.020 and 0.049.

  3. Low Range: Offence: Driver with a blood alcohol concentration between 0.05 and 0.079.

  4. Mid-Range: Offence: Driver with a blood alcohol concentration between 0.08 and 0.149.

  5. High Range: Offence: Driver with a blood alcohol concentration of at least 0.15.

These prescribed limits are crucial in determining the severity of the offence and drunk driving charge. Notably, the effects of alcohol on driving are substantial, impacting response time, decision-making, spatial judgment, multitasking ability, alertness, and balance. Drink driving contributes significantly to road accidents, with approximately one in seven fatal crashes in NSW linked to alcohol.

NSW enforces three blood alcohol concentration (BAC) limits:

  1. Zero BAC: Applicable to learner drivers, provisional 1 and 2 drivers, and visitors holding certain licenses.

  2. Under 0.02:

    • Applies to drivers of heavy vehicles, those transporting dangerous goods, and drivers of public vehicles such as taxis or buses.

  3. Under 0.05:

    • The general limit for most drivers.

Since June 28, 2021, NSW introduced stricter penalties for combined drink and drug driving offences, highlighting the serious consequences of mixing alcohol and illicit drugs while operating a vehicle in New South Wales. Because of this, it is incredibly important to make sure that you manage your blood alcohol level to avoid a drink driving charge. The affect that alcohol can have on an individual’s blood alcohol level varies from person to person. It is important to remember the effect that this will have on any breath alcohol testing and subsequent blood alcohol reading that might take place. For a further breakdown of case studies where Jameson Law has helped clients, check out this article here.

DUI Defences

honest and reasonable mistake

The defence of “honest and reasonable mistake” in the context of drink driving charges refers to the assertion that the accused, at the time of driving, genuinely believed they were not under the influence of alcohol or drugs. This can be a useful defence to avoid a DUI charge and a DUI conviction. For this defence to be effective, the mistake must be both honest and reasonable, meaning that a reasonable person in a similar situation would have made the same error.

This defence recognizes that individuals may sometimes misjudge their level of impairment, perhaps due to factors such as fatigue, stress, or lack of awareness. Legal professionals may present evidence to establish the sincerity and reasonableness of the mistake, challenging the prosecution’s assertion that the accused knowingly driving under the influence.

The success of this defence often hinges on the specific circumstances surrounding the incident and the ability to demonstrate a genuine and understandable mistake on the part of the accused.

Situations where this defence can be used

The defence of ‘honest and reasonable mistake’ can be applied in various scenarios where an individual genuinely and reasonably believed they were driving under the legal alcohol limit. This defence becomes particularly relevant in cases where a person’s drink was unknowingly spiked, leading to a misjudgment of their level of impairment. Additionally, situations where fatigue is misinterpreted as the influencing factor rather than the effects of alcohol, provide grounds for this defence. Another instance where this defence may be applicable is when a significant amount of time has elapsed since the last drink, such as driving the day after consuming alcohol. It is important to note that these examples do not exhaust the possibilities, and consulting with a qualified traffic law expert is crucial to assess the applicability of the ‘honest and reasonable mistake’ defence based on the specific circumstances of an individual’s case.

Challenging Police Procedure

A critical procedural defence against a DUI charge in New South Wales involves the “two-hour rule.” According to NSW law, police must adhere to specific procedures when arresting and charging someone for a drink driving offence. Although you might be stopped for a random breath test while you are in your motor vehicle, this breath test is actually not the most accurate machine. The arresting officer instead is required to check the results of the field sobriety test against a more accurate machine to obtain a br breath test against a breath analysis certificate – usually from a breath analysis machine – within 2 hours from when the intial first test was taken. This 2 hour requirement to certify the breath test is required by the Road Transport Act.

As a result, if law enforcement obtains a blood-alcohol reading through a breath analysis more than two hours after the last known act of driving or attempting to put a vehicle in motion, the breath analysis certificate becomes inadmissible as evidence to establish the driver’s blood-alcohol content.

Consequently, the police would need to resort to alternative methods to prove that the driver was operating a vehicle with a prescribed concentration of alcohol. However, this presents a significant challenge in practice, as finding alternative means to establish this fact becomes exceedingly difficult.

Failure to comply with the two-hour rule can provide a robust defence strategy, rendering the breath analysis results unusable and challenging the prosecution’s case in proving the prescribed concentration of alcohol while driving.

Contesting that the driver was not driving or 'attempting to put the vehicle in motion.'

One potential defence against a DUI charge in Australia involves contesting the element of “driving or attempting to put the vehicle in motion.” This defence hinges on challenging the prosecution’s ability to prove that the accused was actively operating the vehicle at the time of the alleged offence. If it can be demonstrated that the individual was not in control of the vehicle or had no intention to set it in motion, it may undermine the DUI charge.

Factors that can support this defence include scenarios where the person was found inside a stationary vehicle, perhaps using it as a temporary shelter or resting space without any intention to drive. Additionally, if there is no concrete evidence of the accused engaging in driving-related activities, such as manipulating the controls or attempting to start the engine, this defence may gain strength.

Successfully establishing the defence of “not driving or attempting to put the vehicle in motion” requires a thorough examination of the circumstances surrounding the arrest. Seeking legal representation, such as the services provided by Jameson Law, can be crucial in crafting a robust defence strategy tailored to the specific details of the case and challenging the prosecution’s assertion of active vehicle operation


In Australia, illegal blood alcohol levels are determined by prescribed concentration of alcohol (PCA) limits, which vary based on factors such as license type and the specific circumstances of the driver. Commonly, these limits include zero blood alcohol concentration for learners, provisional, and certain other drivers, and a low range, mid-range, and high range for others.

Exceeding these specified limits constitutes a drink driving offence, with penalties ranging from fines to imprisonment. Additionally, the admissibility of breath analysis results is contingent on adherence to procedural rules, such as the "two-hour rule," further impacting the determination of illegal blood alcohol levels in legal proceedings.

During a DUI arrest in Australia, the process unfolds through a series of steps. Initially, police may stop a driver suspected of DUI during a routine traffic check or in response to observed erratic driving behaviour. The officer then conducts an initial assessment for signs of impairment, followed by a roadside breath test using a breathalyzer device to measure blood alcohol concentration (BAC). If the result indicates an elevated BAC, suggesting intoxication, the driver is arrested and taken to the police station for further testing.

At the station, more accurate BAC testing is conducted, which may involve a breath analysis or blood test. Depending on the confirmed BAC level, charges are laid, specifying the offence and potential penalties. The accused individual is then either released on bail or detained until a court appearance.

Following the legal process, which may include court hearings, potential fines, license disqualification, and in severe cases, imprisonment, the individual must address the consequences of the DUI arrest. It's crucial for those facing DUI charges to seek legal guidance to navigate the intricacies of the legal system and understand their rights and options.

A PCA charge, or Prescribed Concentration of Alcohol charge, is distinct from the commonly used term "DUI" (Driving Under the Influence) in the context of drink driving charges. While DUI charges require police to prove that a driver was actually "under the influence" of alcohol at the time of driving, which can be subjective and challenging, PCA charges focus on the measurable concentration of alcohol in a person's blood.

In PCA charges, law enforcement can charge an individual with drink driving if their blood alcohol concentration exceeds the prescribed limit, regardless of whether there are visible signs of intoxication or impairment. The term "Prescribed Concentration of Alcohol" refers to specific ranges outlined in legislation, such as the novice range, special range, low range, mid-range, and high range, each with its associated blood alcohol concentration limits.

The distinction lies in the ease of enforcement for PCA charges, as the concentration of alcohol can be scientifically measured with precision, making it a more objective basis for legal action. Despite the measurable nature of PCA charges, individuals still have potential defences to contest such charges, even though they may not necessarily involve proving or disproving subjective signs of being under the influence.

In the best-case scenario for a DUI in Australia, effective defence strategies can play a pivotal role. A skilled attorney may uncover procedural errors, inaccuracies in testing, or other weaknesses in the prosecution's case, potentially leading to a dismissal or reduction of charges.

Additionally, negotiation with the prosecution may result in alternative sentencing options, such as diversion programs, rehabilitation, or community service, particularly beneficial for first-time offenders with lower blood alcohol concentration levels. Achieving reduced penalties, shorter license disqualification periods, or even avoiding a criminal record through Section 10 dismissals or Conditional Release Orders without a conviction are favorable outcomes that a proficient attorney can strive for.

If you or someone you know is facing a DUI charge and seeks experienced legal representation, consider reaching out to Jameson Law. With a commitment to defending clients in cases under Australian traffic law, Jameson Law's expertise may provide the guidance needed to navigate the legal process and explore the best possible outcomes for DUI charges.


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