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Drink Driving


Stephen Preece

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:

  • Section 63 - Driving under the influence of alcohol;
  • Section 64 - Driving with a blood alcohol content of or above 0.08;
  • Section 64AA - Driving with a blood alcohol content between 0.05 and less than 0.08;
  • Section 64A - Driving with a blood alcohol content of or above 0.02 in certain cases; and
  • Section 64AAA - Driving with any blood alcohol content at all in certain circumstances.



WHICH BLOOD ALCOHOL CONTENT LEVEL IS APPLICABLE TO A PERSON?

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:

  • A person who is subjected to an alcohol interlock condition that has not been removed. This applies to people who hold an interstate licence which has an interlock condition or who had an interstate driver’s licence with an alcohol interlock condition immediately prior to obtaining a driver’s licence in Western Australia; or
  • A “Novice Driver” – this means that a person has held a driver’s licence for less than two years in total; or
  • A person is a “recently disqualified driver” – this means that;
    • in the last three years the person ceased to be subject to an order disqualifying them from holding or obtaining a driver’s licence that was imposed as the result of an offence of driving under the influence of alcohol or an offence where the person was convicted of a subsequent offence for exceeding a blood alcohol content of 0.08; or
  • An “Extraordinary Licence” holder. This is a licence that can be granted by the Court in some circumstances which allows a person to drive with strict conditions where that person has been otherwise disqualified from holding or obtaining a driver’s licence; or
  • A person who is currently disqualified from holding a driver’s licence because their driver’s licence has been cancelled for an offence of “driving under the influence of alcohol”, “driving under the influence of drugs” or “failure to comply with requirement to provide sample, allow sample to be taken or to accompany police officer”; or
  • A person who is currently disqualified from holding a driver’s licence because their driver’s licence has been cancelled for a second or subsequent offence of being or exceeding 0.08 which was committed after the commencement of the Road Traffic Amendment Act 1997 (WA); or
  • A person who does not hold a driver’s licence because it has previously been cancelled under a cancellation provision as a result of an order disqualifying the person from holding or obtaining a driver’s licence imposed on the person upon being convicted of an offence committed after the commencement of the Road Traffic Amendment Act 1997; or
  • A person driving the following vehicles;
    • A vehicle which can carry twelve or more people and at the time of driving the person is carrying passengers; or
    • A bus being driven for hire or reward which is carrying passengers; or
    • A taxi which is being driven for hire or reward and is carrying passengers;
    • A vehicle which exceeds a total weight of 22.5 tonnes; or
    • A specific vehicle which is carrying dangerous goods.

WHEN CAN POLICE REQUIRE A PERSON TO PROVIDE A PRELIMINARY BREATH TEST?

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.

WHEN CAN POLICE REQUIRE A PERSON TO PROVIDE A SAMPLE OF BREATH FOR ANALYSIS?

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:

  • The person refuses, fails to or is incapable of providing a sample of breath for a preliminary breath test; or
  • Police believe on reasonable grounds that the person has committed the offence of driving under the influence of alcohol, drugs or both; or
  • Police believe on reasonable grounds the person has committed the offence of dangerous driving causing “death or grievous bodily harm” or “bodily harm” and at the time the person was driving whilst under the influence of alcohol, drugs or both, and police do not know exactly who was driving the vehicle but have reasonable grounds to suspect it was the person. If the person was supervising a learner driver who committed any of these offences, the police may require both the driver and the supervisor to provide a sample of breath for analysis; or
  • Police do not know or have doubts about who was driving but believe on reasonable grounds that the person was driving a motor vehicle when the driving of that vehicle caused or contributed to personal injury to a person or damage to property. If the police reasonably believe that the person may have committed the offence of driving under the influence of drugs, alcohol or both at the relevant time the police can require the person to provide a sample of breath for analysis; or
  • If the person was supervising a learner driver when the use of the motor vehicle caused or contributed to personal injury to a person or damage to property and the police believe on reasonable grounds that the person would have committed the offence of driving under the influence of alcohol, drugs or both if the person was driving the car instead of the learner driver.

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:

  • The sample of their breath could not be provided within 4 hours of the relevant time of driving or attempted driving, management or use of the motor vehicle; or
  • The person is physically incapable of providing a sample of breath for analysis.

WHEN CAN POLICE REQUIRE A PERSON TO PROVIDE A SAMPLE OF BLOOD 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:

  • The person is physically incapable of providing a sample of breath for analysis; or
  • The person has provided two samples of breath for analysis and the breath analysing equipment has failed to analyse the samples.

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:

  • The person provided a sample of breath for analysis; and
  • The analysis showed their blood contained no alcohol or insufficient to explain their conduct which caused the sample to be taken.

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.

WHEN CAN POLICE REQUIRE A PERSON TO PROVIDE A SAMPLE OF URINE FOR ANALYSIS?

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.

HOW DO POLICE CALCULATE A PERSON'S BLOOD ALCOHOL CONTENT?

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:

  • The time the person last consumed alcohol; and
  • The time the person was driving or in charge of the vehicle; and
  • The time of the taking of the breath or blood sample.

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;

  • Calculate how much the person’s blood alcohol content increased from the time the person last consumed alcohol to the time the person was driving or in charge of the vehicle. This is calculated on the basis that their blood alcohol content will increase by 0.016 per hour for two hours after the person last consumed alcohol; and
  • Calculate how much their blood alcohol content may have decreased since the time the person was driving or in charge of the vehicle. This is calculated on the basis that their blood alcohol content will reduce by 0.016 per hour after it has reached its peak level.

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.


where to next?

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.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
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