Criminal Law - Serious Traffic and Drink Driving Offences

Serious Traffic Offences

There are a number of serious traffic offences with one of the most serious being dangerous driving. A person is guilty of this offence where the vehicle driven by that person is involved in an impact occasioning death and at the time was driving under the influence of intoxicating liquor or a drug or at a speed dangerous or in a manner dangerous to another person or persons carrying a penalty of up to 10 years gaol.  It is a defence if the death or grievous bodily harm occasioned by the impact is not in any way attributable to drugs or alcohol or the speed or manner in which the vehicle was driven.  The elements involved in aggravated dangerous driving occasioning death or grievous bodily harm is where the accused has the prescribed concentration of alcohol present in their blood or the accused was driving the vehicle at a speed of more than 45kmp above the speed limit or the accused was driving the vehicle to escape police pursuit or the accused's ability to drive was substantially impaired by a drug other than intoxicating liquor or a combination of drugs including intoxicating liquor.

The offence of dangerous driving replaced culpable driving.  The offence is one of strict liability. The offence is not restricted to driving on a public road. The offence is person or persons specific and the focus is not driving in a manner or speed dangerous to the public. The test applied to determine this is an objective one. Momentary inattention is neither an excuse or a defence. By its very nature the offence smacks of negligence which is imported into the offence for the safety of road users.  The mere presence of alcohol is irrelevant. Where a driver is adversely affected by alcohol it is relevant to the question of driving in a manner dangerous. Where the offence is driving under the influence of alcohol or a drug this is one offence in the alternative.  The penalties for dangerous driving vary from seven years to 14 years in the case of aggravated dangerous driving occasioning death.

The courts now pay due regard to the maximum penalties available with sentences being sharply increased.  The focus is upon protecting human life and where death results from dangerous driving it is considered extremely serious.  Many of the normal factors in mitigation although given some regard are not given the same weight as previously. In extenuating circumstances full time custodial sentences may not be handed down but this is becoming more the exception that the rule.  It should be noted that the accused is conclusively presumed to be under the influence of liquor where impact results if the prosecution proves that the prescribed concentration of alcohol was present in the accused's blood at the time the impact occasioned death or grievous bodily harm.

Drink Driving Offences

These offences fall for consideration as follows:

• Offences in involving the prescribed concentration of alcohol;
• Offences involving driving under the influence of alcohol or other drug;
• Random breath testing and breath analysis;
• Blood analysis following accidents;
• Sobriety assessments and related drug analysis.

Suffice to say that all PCA offences are considered major offences and there is a distinction between PCAs and DUIs.  Penalties depend on the type of offence and prior traffic history.  It is an offence for a person to drive or occupy the seat of a motor vehicle whilst under the influence of a drug or alcohol. There are fewer DUI offences as this is the older charge which has been supplanted by PCA offences more recently. Upon conviction for a major offence a period of automatic licence disqualification applies without the order of a court.  The court may take into account the effects of disqualification on the offender when deciding what the penalty should be including gaol. 

The police have the power to conduct random breath testing and in general terms a police officer may require a person to undergo a breath test if they have reasonable cause to believe that a person is or was driving a motor vehicle, or is or was occupying the driving seat of a motor vehicle, or was attempting to put a motor vehicle in motion on a road or road-related area.  Any such person must not refuse or  fail to undergo a breath test required by the police officer.  Blood testing is essential in dealing with PCA offences and if a police officer requests a person to undergo a breath test and is refused they may arrest the person without warrant and require the person undergo breath analysis.  As soon as practicable after a person has submitted to breath analysis the police officer operating the breath analysing instrument must deliver a written statement to that person signed by that officer specifying that person's prescribed concentration of alcohol.  The certificate signed by an authorised officer as to the person's alcohol is prima facie evidence of it. A certificate outside the 2 hour time limit is normally inadmissable.  It is also an offence to wilfully alter a blood concentration following a request for a breath test or breath analysis.  If a person is admitted to hospital following a motor vehicle accident it is the duty of the medical practitioner treating them to take a blood sample.  It is an offence where the driver refuses to comply.

As all PCA offences are major offences then upon conviction a period of automatic licence disqualification applies without specific order of a court. There are five different categories of PCA offences including novice range, special range, low range, middle range and high range.  Most of these offences focus on driving or occupying the driving seat of a motor vehicle and attempting to put the motor vehicle into motion whilst having more than the prescribed concentration of alcohol in the bloodstream at the relevant time. The court has the power to reduce or extend the automatic disqualification period as it thinks fit subject to the minimum periods outlined. It should be noted that disqualification is in addition to any penalty imposed for the offence. With all PCA offences they rely upon a precise blood alcohol reading. If at the time of conviction the offender is convicted of another major offence or has been convicted of a major offence within the previous five years, the automatic and minimum periods of disqualification are increased.  It should be noted that maximum penalties for offences are greater for a second or subsequent offence within a five year period.  Disqualification is in addition to any penalty imposed for the offence.  The effect of disqualification operates to cancel permanently any driver's licence held by the person at the time of their disqualification.

The court treats all drink driving offences as serious.  For each one of the five different categories of PCA offences there are different penalties.  The higher the range the more serious the penalty. Courts always look at the offender's prior traffic history and where the offender has had three or more relevant offences within the last five years they are declared to be an habitual traffic offender.  This carries an automatic disqualification period of an additional five years to any disqualification period imposed by the court. Although many drivers are picked up with PCA offences through random breath testing there are also a large number of offenders who come to the attention of the police because they are involved in other driving offences or traffic accidents.  The courts do not like matters where there are other young people in the car, the drink driving led to an accident or if there was an injury to another person(s).  In all of these cases the offender will need the services of an experienced solicitor given the imminent possibility of gaol and a pre-sentence report will need to be prepared to assist to minimise this possibility. 

Although there are a number of traffic offender programmes they are not available through all local courts.  If they are successfully completed they may assist with sentence reduction. Unfortunately too may people try to represent themselves and at the last minute seek the services of a lawyer to do this for them only to be disappointed due to insufficiency of time. Most offenders who attempt to represent themselves are neither experienced lawyers nor competent advocates and have little if no idea of what to do. Unfortunately they rely upon the police prosecutor and the local court to take a benign view of their matter and believe by telling a story to the magistrate that all will be well.  Magistrates hear the same stories day in and day out and unless they are persuasively moved to consider a range of factors which only competent solicitors and barristers are aware of then little or no extra consideration will be given and penalties will be harsh.  How can a rank amateur, eg. ask for the automatic disqualification period which applies in the case of a high range PCA, to be reduced?  How would such a person address the court to mitigate the severity of any penalty imposed or how would they know the nature and extent and type of penalties, which are available?  This is not an area for the uninitiated but one where the best results are always obtained by seeking out the services of an experienced criminal law solicitor.  Call us now!