Drink driving - Although rare, it is possible to have your DUI dismissed.

Many people fall foul of police breath testing.

When the police conduct one on the road, should you return a reading on their mobile breathalyzer unit that indicates you have a prescribed concentration of alcohol (“PCA”) in your blood, they will arrest you and convey you to the nearest police station for a breath analysis on a “proper” breathalyzer.

Normally, the breathalyzer will provide a more accurate reading of your blood-alcohol level and the police will complete a certificate to that effect, together with a receipt from the breathalyzer machine attached.

Problems arise when the arrested person does not undergo the analysis on the breathalyzer back at the station. It is an offence to “refuse” and / or “fail to submit” to a breath analysis - and the penalty for doing so is equivalent to that for a high-range PCA.

The police can and will charge you with that offence should they form the view that you are either refusing, or simply failing to submit to the analysis.

This is an extreme injustice (especially if you do not have a prescribed PCA level at all) where you have genuine reasons for not undertaking the breath analysis – i.e. a medical complication, or you are making a genuine attempt to undertake the breath analysis and the machine is simply broken. However, the police may not appreciate either possibility.

In that case, you should seek legal advice immediately and speak to a competent professional about the circumstances leading to you being charged with a refusal/ failure to submit, and whether you should have been charged with that offence.

LAC Lawyers was recently involved in a matter where we succeeded in having charges against our client dropped. Our client was charged with low-range PCA because the police thought he was "failing to submit" to breath analysis where in reality the machine was faulty. We analysed the breathalyzer's manual and found that the error message it was displaying could not have been a result of our clients actions. Subsequently the matter was dismissed without charge.

A practitioner experienced in these matters can make representations to the police and/or appear for you in court to have those charges either defended or withdrawn.

LAC Lawyers has great experience in these matters.