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In South Australia there are three types of drink driving related offences that a driver may be charged.

These are:

  1. Driving over the limit which means that the level of alcohol in the driver’s blood exceeded the prescribed limit.
  2. Driving under the influence of alcohol which means that the driver was intoxicated to the point that his driving was affected.
  3. Refusing a breath test.

Driving Over the Limit

Let us tackle the first drink driving offence which is driving over the limit. It is the fact of having exceeded the prescribed limit that is being punished not the driver’s way of driving or how the alcohol has affected his ability to drive. A driver will only be discovered to have drunk over the limit if he is pulled over by the police and his blood alcohol reading taken.

There are specific prescribed limits of alcohol level for specific types of licenses. L and P plate drivers must have zero alcohol level at all times when driving and if they exceed that then they will be punished in accordance with the level of alcohol in their system.

Full license holders are allowed a prescribed alcohol concentration (PCA) of up to 0.05 but beyond that limit they may be penalized with some or all of the following penalties: demerit points, disqualification from driving, fines or imprisonment. The more serious the drink driving offence, the higher will be the penalty.

Driving Under the Influence

A person who drives under the influence of alcohol is a danger not only to himself but also to others on the road. Even a person who just attempts to drive a vehicle under the influence of alcohol can be charged and penalized.

A DUI charge is not aimed at punishing a driver for the alcohol level in his body but for driving while being so drunk that he cannot capably drive his vehicle. The law’s goal here is clear and that is to deter drivers from consuming alcohol and then driving.

Alcohol affects each person differently. There are some who get easily drunk even after drinking so little. It’s important to know one’s limit when it come to drinking because even if your alcohol level is below 0.05 you can still be charged with DUI if it’s clear that you were incapable of effectively controlling your car.

The police will look at the tell tale signs of drunkenness like dangerous or poor driving, failure to walk in a straight line, slurred speech, breath that smells strongly of alcohol, or bloodshot eyes.  The breath test reading is not needed to charge and convict a person for DUI since it may be that a person is within the prescribed limit of alcohol but cannot effectively control the vehicle anymore because of the alcohol he consumed. 

DUI is different from driving over the limit which punishes a person for having a certain content of alcohol in their bodies. The penalties are also different. According to Section 47 of the Road Traffic Act 1961, a driver charged with DUI may be punished with a fine of $700 to $1200, or imprisonment for not more than 3 months, license disqualification not less than 12 months and 6 demerit points.

For subsequent DUI offenders, the penalty is a fine of $1500 to $2500 or imprisonment not more than 6 months, license disqualification for not less than 3 years and 6 demerit points.

Refusing a Breath Test

Refusing to take a breath test is not a drink driving offence per se since a person is not really punished for having alcohol in his body while driving. It is the act of refusal that is being punished. Refusing a breath test is viewed as being uncooperative with police procedures.

The breath test must be conducted within 2 hours from the time the driver is flagged for beyond that period the validity of the test and its results could be disputed. Thus, it is important for police to conduct the breath test immediately. The continuing refusal of a driver suspected of drink driving or DUI to have a breath test weakens the case of the police.

 There are limited reasons for which a driver can refuse a breath test. For medical reasons a driver may refuse a breath test but then again he must be prepared to support this in court with a certificate or testimony from a doctor.

Police have the authority to flag a vehicle and conduct a breath test on a driver who attempts to drive or to put a vehicle in motion, is driving or has already driven a vehicle, is acting or has acted as a qualified supervising driver.

The breath test requires the driver to blow into a breath analysis machine. It is presumed that whatever is the result of the breath test is the alcohol level of the driver two hours before the test.

For refusing a breath test, the driver will receive the same penalties for a DUI conviction.

Discussion on Common Penalties for Drink Driving Offences

It is possible that a driver may be charged by the police for both drinking over the limit and driving under the influence. However, the driver will be convicted or penalized for only one offense. For all three types of drink driving offences the police may impose an on-the-spot disqualification from driving.

The disqualification imposed by the police is not the final penalty but the period during which the driver is disqualified from driving will be credited to the penalty that will be finally imposed by the court. First time drink driving offenders can expect the imposition of the minimum penalties.

For serious drink driving offences a person may be ordered by the court to have his vehicle fitted with a mandatory alcohol interlock system during the period of disqualification from driving. A mandatory alcohol interlock system will be ordered for drivers who were found to have a blood alcohol concentration (BAC) at or above 0.15, DUI, refusing a breath test and if within a period of five years the driver is caught with a BAC of at or above 0.08.

 There are drivers whose lawyers will appeal with the court for a lesser penalty by alleging that the offence committed is trifling. Some drink drivers can get away with this ‘trifling’ argument if their BAC was at the lower level and they are first time offenders.

Some drivers charged with drink driving offences prefer to plead guilty so as to be able to bargain for a lesser penalty and to avoid exhausting court hearings. This is well and good for first time offences since most likely the court will be imposing minimum penalties. However, pleading guilty means that the driver will have a conviction record against him.

If he is convicted for a subsequent drink driving offence within the next five years, this prior conviction will cause a higher penalty to be imposed. Thus, pleading guilty must also be considered carefully.

What about for serious driving offences and habitual offenders?  Pleading guilty is not an easy option for them because of the high penalties. For sure, a longer disqualification and period of imprisonment will be imposed.

Traffic laws especially those that cover drink driving offences can be complicated for a layman. It is always recommended that a person charged with a drink driving offence get help from a lawyer rather than attempt to do it all by himself.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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