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This section contains information on drink driving, it sets out the procedures the police follow when ascertaining whether a person is driving with alcohol and/ or drugs in their body. It also sets out the various offences which can be committed where alcohol and/ or drugs are detected in a person’s body as well as the range of penalties which can be imposed.
It is a technical area of law. Our solicitors can provide detailed advice in relation to all matters relating to drink and drug driving.
Unless otherwise stated, all references to “the Act” refer to the Road Traffic Act 1974 (WA). Penalties applicable to drink and drug driving offences refer to “Penalty Units”: this is currently $50.00.
There are a number of offences with which a person may be charged with which arise from being detected driving or attempting to drive a motor vehicle whilst there is alcohol present in their blood. It is important to note that a person can commit the offences even if they are only attempting to drive. The police do not have to prove the person was actually driving. For example, if the person was sitting in the driver’s seat with the car key in their hand that could be enough to prove the person was attempting to drive the vehicle.
The law governing drink driving is complex. The content below is designed to be a guide. Our solicitors can give you more detailed and specific advice based on your particular circumstances.
Drink driving offences relate to the level of alcohol which is found to be in a person’s blood. The offences can be broadly classified as:
The blood alcohol content level applicable to each person can be influenced by several factors. The default blood alcohol content applicable to drivers is 0.05. Drivers must not have a blood alcohol content of 0.05 or higher. However, if a person falls into any of the following categories that person cannot have any alcohol whatsoever in their blood:
The police can require any person in charge of a motor vehicle or any person the police reasonably believe was driving or in charge of a motor vehicle to submit to a preliminary breath test. Further, if the police believe that a motor vehicle caused or contributed to an injury to a person or damage to property, the police can require any person they reasonably believe to have been driving or in charge of the vehicle at the relevant time to perform a preliminary breath test.
If the police require a person to perform a preliminary breath test, the police can require the person to wait at the location for the purposes of conducting the test. This means the person cannot leave prior to the test being conducted. If the person leaves they will commit an offence. The police can also require a person to get out of the vehicle so the police can do the test.
There are many situations where police can require a person to provide a sample of breath for analysis. They are set out below but can be confusing. Our solicitors can give you advice specific to your situation.
If the police require a person to perform a preliminary breath test and that test indicates to the police that the person’s blood alcohol content is at or above the limit applicable to the person at the time, police may further require the person to provide a sample of breath to be formally analysed to accurately establish their blood alcohol content. In some circumstances, police can also require a person to provide a urine sample or allow a sample of their blood to be taken to be analysed.
Police can also require a person to provide a sample of breath for analysis in the following situations:
If police require a person to provide a sample of breath, the person must comply. Police can also require a person to accompany the police to a police station or other relevant place for the purpose of providing that sample and to remain there to allow the sample to be obtained.
There are two circumstances where a person cannot be required to provide a sample of their breath for analysis:
In some situations the police can require a person to consent to a sample of blood being taken for analysis to establish the person’s blood alcohol content. These situations are:
Similar to providing a sample of breath for analysis, a person cannot – with one exception explained below - be required to provide a sample of blood for analysis if the sample cannot be taken within 4 hours of the relevant time of driving or attempted driving, management or use of the motor vehicle.
If a person may have been driving or in charge of a motor vehicle when its presence caused or contributed to the death or serious bodily harm to a person, the police may require that the person provide a sample of blood for analysis; provided it can be taken within 12 hours of the relevant driving or being in charge. If the person is incapable of complying, the police can arrange the taking of the sample from the person by a prescribed sample taker.
The police may also require that a person provide a sample of blood for analysis where:
Where police require a person to provide a sample of blood for analysis, police may require that the person accompany the police to a place for the taking of that sample and to remain there until the sample has been taken.
Under most circumstances where the police have required a person to provide a sample of blood for analysis, the police may also require the person to provide a sample of urine for analysis.
Similarly to the taking of breath and blood samples, a sample of urine for analysis cannot be taken outside 4 hours of the relevant time of driving or attempted driving, management or use of the motor vehicle.
In order to establish a person’s blood alcohol content at the time of driving or being in charge of the vehicle, there is a formula the police use. The police will establish, if possible:
Using these three times, the police will calculate the blood alcohol level they allege was present at the relevant time. To do this the police will;
If the police cannot accurately establish the time a person last consumed alcohol or were driving or in charge of the vehicle, this calculation will be performed in a manner which produces the result which is most favourable to the driver.
Traffic offences are treated seriously in Western Australia. If you have been in an accident, received a licence suspension or received a charge and summons to attend court, it is important to obtain competent legal advice as early as possible. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.
Contact Armstrong Legal:
Perth: (08) 9321 5505
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100