Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
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What is the procedure with regard to breath testing and being charged with drink-driving?
- A police officer can require a motorist who is driving or has been driving to undergo a breath test. The manner of driving is no longer an issue as the police have wide ranging powers to make motorists submit to a random breath test.
- If the breath test proves positive you would be arrested and taken to the nearest Breath Analysis Centre. This is usually a nearby police station.
- At the police station you will be required to provide a sample of your breath for analysis.
- If that is over the limit for your class of licence you will then be charged with a drink-driving offence.
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Do I have to submit to a breath test?
- Yes. If a police officer requires you to undergo a breath test and you refuse you are committing an offence of ‘refuse breath test.’
- Serious penalties are provided for refusing a breath test.
- If you have a medical condition that prevents you from completing the test you will have to present evidence to court to satisfy the magistrate of your condition.
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Will I lose my license?
- All drink-driving offences upon conviction provide for license disqualification. The period of disqualification and the minimum amount of disqualification depends on the actual drink-driving charge you are facing.
- For certain offences the police will give an ‘on-the-spot’ suspension for the offences of:
- DUI;
- mid-range and high range PCA (.08 or greater);
- refuse breath test or
- refuse blood test.
- This suspension runs until you appear in court and have your matter dealt with.
- The court will usually take the period of the on-the-spot suspension into account when you are sentenced.
- In exceptional circumstances a court may deal with your matter under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which means that there is no conviction. As there is no conviction there is no period of disqualification. A lawyer will be able to advise you if this provision may apply in your circumstances.
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My license was taken off me by police when they breath tested me. Can I get it back before the court hearing?
- There are very limited grounds on which you can seek to have a police suspension lifted before the matter is dealt with in court.
- In these circumstances you should consult a lawyer to discuss the matter. You can find one in your area by using our free Find a Lawyer directory.
- The fact that you need a license for work would not be sufficient grounds to overturn the suspension.
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Is there a work license?
- There is no provision for work licenses in NSW.
- Some states or territories do have such a license. A lawyer will be able to advise you if this applies in your circumstances. Our Phone a Lawyer service may help you access the specific advice you need.
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Under what circumstances are blood tests used?
- Any driver who is taken to hospital following a motor-vehicle related incident will have to undergo a mandatory blood test.
- The police also have power to arrest a driver who is involved in a fatal accident or an accident which the police believe may become a fatal accident and subject the driver to a mandatory blood test.
- Where a breath analysis indicates the driver is over the limit the police must advise the driver of their right to have a blood test.
- If a driver chooses to exercise this right the police will provide a blood testing kit. The kit contains a statement of the person’s right to have a blood test together with instructions to both the person and a doctor on the blood sampling procedures. Drivers must make their own arrangements to have the blood sample taken.
- Sometimes blood test results can result in a higher reading than preliminary breath test results.
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Can I challenge the results of a breath test/blood test?
- Most valid challenges concern the time the breath test or blood test was taken.
- There are time limits in which the police can breath test or blood test you.
- If the test is taken outside the time limit you may have a valid defence.
- Challenges based on the amount you have drunk being inconsistent with the breath test result are rare but can be possible.
- Any challenges to a breath test or blood test require complicated legal arguments. You should consult a lawyer before considering your options. You can find an experienced lawyer in your area by using our free Find a Lawyer directory.
- There are circumstances where your excuse may be more appropriately used on a ‘guilty’ plea rather than at a contested hearing.
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What happens at court if I admit the charge?
- Before you attend court it is important to have obtained references from people who know what you are normally like and who can attest to your good character or any unusual circumstances surrounding the offence.
- If you have difficulty with public speaking you may wish to write a letter addressed to the magistrate explaining your actions on the day of the offence.
- The court must look at all circumstances surrounding the offence before it determines a penalty. The circumstances include:
- your blood alcohol reading;
- any particular reason why you chose to drive;
- why you were stopped – was it a random breath test or were you involved in an accident;
- whether the offence involved speeding or seriously bad driving and
- whether the public was put at risk because of your actions.
- The court is aware of the far-reaching effects of license disqualification. Any significant effect this may have on you, your employment or other people who rely on you such as an ill family member should be mentioned to the court.
- Your employment may depend upon a licence. However this does not automatically mean you will keep your licence.
- Your income is also a relevant feature in assessing the amount of the fine.
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What is an Interlock Device?
- An interlock device is a barrier installed in a person’s car that stops them driving if they have consumed alcohol. The purpose of the device is to enable repeat offenders to be able to drive a vehicle during the normal period of disqualification.
- There is a standard mandatory period of disqualification following which a successful applicant can drive a vehicle fitted with an interlock device.
- The period that the driver has to drive with an interlock device is governed by the nature of the offending PCA and prior offences.
- The cost of fitting the alcohol interlock device will be the driver’s responsibility but a concession scheme is available to eligible concession-card holders.
- While subject to the alcohol interlock scheme a driver can only drive a vehicle fitted with the device.
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What does driving under the influence of drugs mean?
- Drug saliva tests can detect cannabis and amphetamines such as speed or methamphetamines such as ice.
- Where a roadside test is positive police have the power to conduct either a further saliva test or a blood test.
- Drivers may face charges of driving under the influence or a new offence of driving with a prescribed drug in oral fluid or blood.
- Before charges can be laid the presence of drugs must be confirmed by laboratory testing.
- The saliva test is mandatory and there are penalties for drivers who refuse to co-operate.
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When is a jail sentence imposed?
- Jail is a real prospect for repeat offenders and those who are charged with criminal driving offences that have caused serious injury to innocent parties.
- There have been jail sentences imposed for first offenders who have had a very high blood alcohol reading and who have been involved in an accident.
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Will I have a criminal record?
- If you are convicted of any of the drink driving offences and are required to pay a penalty you will have a criminal record.
- If the matter is dismissed under section 10 of the Crimes (Sentencing and Procedure Act) 1999 (NSW) then there is no conviction. The position may be different in other states and territories.
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