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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

FAQs

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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Policies for repeat offenders

Australia’s criminal justice system is complex, and sentences imposed for repeat offenders can vary across different states and territories. Additionally, laws and policies that are a part of the sentence imposed are subject to change. Because of that, it’s essential to consult the most recent legal sources or seek advice from legal professionals, such as those at Jameson Law, for the latest information. When choosing a law firm, consider factors such as their expertise in criminal law, experience with cases similar to yours, and a good reputation in the legal community. Jameson Law, like many law firms, may have lawyers with a deep understanding of the local legal landscape, including the specific laws to repeat offending. What is a repeat offender in Australia? In Australia, there’s a big problem with people who keep breaking the law again and again. We call them “repeat offenders.” These are individuals who have been in trouble with the law, and even after they’ve been punished, they go on to commit the same or similar crimes. The NSW Bureau of Crime Statistics tells us that about 60% of people who are let out of jail end up breaking the law again within two years. That number is even higher for younger people. Almost 80 per cent of juvenile offenders become a repeat offender for further offences within 10 years. Time and time again the same repeat offender is coming in front of the sentencing court. Reducing recidivism, or stopping people from committing repeat offences on separate occasions is an important part of a healthy society. In part, this may be coming from an overcrowding of our prisons. The NSW Prison Bureau recently published that the prisons currently operate at 112% occupancy. If someone commits two serious sexual offences or traffic offences on different occasions, they can be called a “repeat offender.” Even if the crimes these repeat offenders and habitual criminals commit aren’t as bad, they still have a big impact on our society, public safety, and how much we trust the legal system. A big reason why these repeat offenders act this way is because they face a lot of difficulties in their lives. Things like drug and alcohol addiction, mental health issues, not having the right skills for a job, and other problems play a role in why they keep breaking the law. It’s important to understand and address these difficulties to help them stop committing crimes and make our communities safer. Laws for repeat offenders In Australia, the law for repeat offenders in certain road-related offences is outlined in Section 4F(2) of the Road Transport (Alcohol and Drugs) Act 1977. According to this law, a “repeat offender” is defined as an individual who has been previously convicted or found guilty of a “relevant offence” at any time before committing the current “disqualifying offence.” A “relevant offence” includes specific offences related to alcohol concentration, drug presence, refusal to provide samples, and driving under the influence. Importantly, the person can be considered a repeat offender even if they were not convicted of a similar offence at the time of committing the disqualifying offence. Essentially, such offenders are people who have committed previous offences before they then commit another offence which is considered a ‘disqualifying offence.’ A disqualifying offence can be many things. However, a sentencing judge tends to see most traffic offences or similar offences as those that can count. A “disqualifying offence” encompasses various violations, such as driving with a prescribed concentration of alcohol or drugs, refusing to provide samples, and other offences specified in the Act or prescribed by regulations. Moreover, a “relevant offence” is broadly defined to include disqualifying offences, corresponding offences, or offences of culpable driving as per section 29 of the Crimes Act 1900. A “corresponding offence” refers to an offence against the laws of another jurisdiction that aligns with a disqualifying offence in New South Wales.   In a nutshell… You will be considered a repeat offender if you commit a second crime after being found guilty of one already. The crime doesn’t necessarily have to be the same, but it must be the case that the person committed certain offences on a separate occasions. Seek legal advice to avoid harsher penalties today! Consequences for repeat offenders Harsher Penalties: Repeat offenders often face more severe penalties, such as longer prison sentences and higher fines. Courts take into account the individual’s criminal history, which can influence the decision to impose a harsher punishment. For example, if someone has previously been convicted of a similar offence, the court may be less lenient and opt for a more stringent sentence to deter further criminal behaviour. Extended Probation or Parole: Repeat offenders may be subjected to longer probation or parole periods, during which they must adhere to strict conditions set by the court. This could include regular check-ins with probation or parole officers, mandatory drug testing, and compliance with specific behavioural requirements. The extended supervision aims to monitor the individual’s activities closely and reduce the risk of recidivism by providing necessary support and oversight. Driving License Disqualification: In cases involving traffic-related offences, repeat offenders may face more extended periods of license disqualification or even permanent revocation of their driving privileges. This consequence is especially relevant for offences such as driving under the influence (DUI) or reckless driving while speeding. Losing the ability to drive can have significant practical implications for individuals, affecting their employment, daily activities, and overall quality of life. Mandatory Programs: Courts may mandate repeat offenders to participate in rehabilitation or counselling programs to address underlying issues contributing to criminal behaviour. These function as a form of preventive detention for a repeat offender. These programs aim to provide support, address substance abuse problems, or tackle mental health issues that may be contributing factors to their relevant offences. The goal is to facilitate the offender’s rehabilitation, reduce the likelihood of future offences, and address the root causes of their criminal behaviour. These consequences highlight the comprehensive approach the legal system takes to address repeat offences, combining punitive measures

Section 10

Section 10 refers to section 10 of the Crimes (Sentencing Procedure) Act 1999. Section allows a court authority to find a defendant guilty of an offence but not record a conviction for that offence. This is a discretionary power that exists for criminal or traffic offence matters involving extenuating circumstances. If you have been charged with a matter which you believe may fall within a section 10 exception then you should seek legal advice to be sure. Jameson Law has a team of expert criminal lawyers able and willing to assist you with all your criminal law needs. What Is Section 10? Section 10 allows an exemption within court proceedings and provides authority for the court to record a non-conviction despite determining a guilty verdict. This means that a criminal offence can be proven beyond a reasonable doubt but it will not be recorded against the individual’s criminal record. Section 10 is purely discretionary however and there are clear identifying factors that need to be shown before the court will consider applying it. These factors include not only the nature of the offence but whether the defendant has genuine remorse for their actions, along with the person’s character, etc. There are three different types of section 10 orders that can be applied if the situation warrants, a dismissal of the charges, an order discharging the individual under a conditional release order or a discharge with a requirement to attend an intervention program. Dismissal Of Charges One of the options the court has under section 10 is to dismiss the charges and record a non-conviction. A simple dismissal of charges will not include any conditions. This order is only made if the court considers that the offending is of such a trivial nature that it warrants leniency. This may apply to driving offences, low-level possession of drug charges, etc. Certain offences such as assault or grievous bodily harm for example are not subject to release orders due to the nature of the offending. Conditional Release Orders The court is able to make a conditional release order which allows an individual an alternative to a term of imprisonment. If the court thinks proper then this option can be used in circumstances involving extenuating circumstances. This type of order is utilized for less serious criminal and traffic offences and can apply to those with a limited criminal history. A conditional release order was introduced to replace the previous measure of a good behaviour bond. This order can be imposed with or without a conviction. It is a courtesy the court extends as a nominal punishment. The conditions that can be imposed by the court include rehabilitation for drugs, alcohol, mental conditions, etc. An intervention plan is imposed by the court, depending on the nature of the offence, to try and rehabilitate instead of punish. If rehabilitation is successful then logically no further offences will be committed. One of the most challenging considerations for a court is what stance to take in relation to an alleged mental condition. An individual suffering from a diagnosed mental condition can fall anywhere on the scale ranging from severe to mild but rehabilitation may not prevent the offending. Drug and alcohol use are somewhat different in that it can be easier to rehabilitate from the use and there are clear markers that indicate whether rehabilitation is successful. Those same markers do not apply to mental health. There is also an inherent difficulty with medical professionals agreeing to a diagnosis as many people will present with symptoms that fit different conditions. Just because there is a reason for rehabilitation to be looked at over a harsher sentence does not mean it will be. Intervention Programs An intervention or rehabilitation program is used as a rehabilitative means of reducing criminal and drug behaviour. If the court imposes this type of order it is because they consider a better outcome will result from such an order. This is a lenient outcome for matters involving a prohibited drug or alcohol. The individual can be required to attend a drug or alcohol rehabilitation program. The offender’s mental condition may also be of relevance and rehabilitation may be required. The specific circumstances of the offending are relevant to the conditions. No matter the order imposed, the relevance of section 10 is that it provides a lenient sentence to those deemed deserving of a second chance, whether that be traffic matters, drug matters, etc. A section 10 order is able to protect both current and future employment as well as other activities, and family opportunities. Why Does The Section 10 Exemption Exist? The Section 10 exemption exists because there is a basic understanding that mistakes can be made. A recorded criminal conviction can affect an individual’s job prospects, family circumstances, children’s activities etc. The courts recognize that a second chance can be given in certain circumstances and legislation has built in this principle. Sentencing procedure previously saw this type of exemption relate to a good behaviour bond. Good behaviour bonds were utilized in similar circumstances when it was deemed that a person found guilty of a criminal offence deserved and was eligible for a lenient sentence. The Crimes Sentencing Procedure Act 1999, as with all legislation, frequently falls under review so that the court can continue to work towards a goal of individual and community deterrence from criminal offending. Case Study Gloria has been charged with possession of marijuana and is to appear before the local court. This is her first offence. Gloria advised the court that she had been pressured by friends to purchase a small quantity of marijuana so they could smoke it after their year 12 dance. Gloria is in grade 12 but she has already turned 18. After the dance, Gloria and her friends go to the local park to smoke the joints they have made. The police were patrolling the park and when Gloria’s friends saw the police, they ran. Gloria was stopped and arrested for possession. Gloria entered

Speeding charge dismissed.

Speeding Charge Dismissed We recently appeared in Burwood Local Court on behalf of a 43-year-old man charged with exceeding the speed limit by over 20km/h. Our client was detected by a speed camera doing 69km/h in a 40km/h zone. The camera was located in the M4 tunnel where the speed limit is usually 80km/h. At the time of the offence, the variable speed limit had changed to 40km/h with little notification. Our client had held his licence for 26 years and was employed a truck driver, driving road trains up to 55 metres in length. He finally progressed onto his Road Train Licence in 2014 and had an excellent driving record.  During the sentence hearing, our experienced Senior Solicitor, Mr Philopos, tendered subjective material, which included character references and an apology letter. Mr Philopos also made oral submissions in relation to the offence, specifically outlining the difficulties a road train driver faces when being forced to reduce speed rapidly in a short period of time. Section 10 (1)(a) of the Crimes Sentencing Procedure Act 1999 The Magistrate accepted Mr Philopos’ persuasive submissions and proceeded to exercise discretion and dismissed the offence in accordance with Section 10 (1)(a) of the Crimes Sentencing Procedure Act 1999. Our client was extremely happy with the result and our representation of him. Every client at Jameson Law is treated with care and understanding, no matter the circumstances. We appreciate the importance of every client’s matter. We are proud of the results we obtain, and how the team at Jameson Law works together to obtain excellent outcomes for clients. If you are in need of any expert legal advice or representation regarding traffic-related matters, contact Jameson Law today.

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