Drink-Driving Client Guide
This guide is prepared to provide our clients with answers to FAQs about drinking and driving offence. This guide constitutes general advice. For advice specific to your case you should consult a lawyer.
The Roadside Test – When Can You Be Asked To Take One?
You can be stopped by a plainclothes officer but the test must be administered by a uniformed constable unless there has been an accident.
A police officer can only ask you to take a test if
there is reasonable cause to suspect that you have committed or are currently committing a moving traffic offence
there is reasonable cause to suspect that the driver or a person attempting to drive has consumed alcohol
there is reasonable cause to believe that the driver or person attempting to drive in charge of the vehicle was involved in an accident
Can The Police Make Random Stops?
This is a common question. The police are entitled to stop cars at random. They cannot however ask drivers to take an impairment test at random. They can only ask for an impairment test where one of the conditions above have been satisfied.
What is the Limit for a Breath Test
The prescribed limit for alcohol is
35 µg of alcohol per 100 mL of breath
or 80 mg of alcohol per 100 mL of blood
Can I Be Asked To Take A Test If The Police Haven’t Seen Me Driving?
Yes. The police can ask anybody who is attempting to drive or in charge of a motor vehicle – for example if it is stationary and the engine is on to take a test.
What Happens If The Roadside Test Is Positive?
You’ll be arrested and taken to the police station. There you will be asked to provide two specimens of breath for analysis.
What Happens If I Refuse To Take A Roadside Test Or Can’t Give A Sample At The Roadside?
You will be arrested and taken to the police station where you will be asked to provide twos breath specimens for analysis
What Happens If I Blow Just Over The Limit?
If you’re breath specimen is 39 or less you will not normally be charged or cautioned.
If the breath specimen you provide is between 40 and 50 µg, the police have to give you the option of providing a specimen or blood or you urine as an alternative. They decide which one. The blood sample cannot be taken without your agreement but if you refuse the police may be able to rely on the breath sample which was taken earlier.
Can I Choose To Give You Rhine Or Blood At The Police Station Rather Than A Breath Test?
You do not have a right to choose to give a urine or blood sample instead of a breath sample. If you fail to provide a sample without reasonable excuse you could be prosecuted. The penalties for failing to provide are the same as for drink-driving.
If you have a medical condition that stops you from providing a breath sample, that could be a reasonable excuse. You would normally be expected to tell the officer about this at the time. It is not a good excuse if you are too drunk to give a sample.
In certain circumstances you could be asked by the officer to provide blood or urine as an alternative to a breath sample but this is not your choice. If urine is requested you must give two samples. You have the right to ask for two blood samples if the police request.
What happens if my sample is over the limit?
If the police decide to charge you, you will be told of the date that you are required to appear at court and will be given a charge sheet. In almost all cases you will be given bail to attend court. You are free to drive until the date of the hearing.
At this point you should contact a lawyer immediately.
What Can I Be Charged With And What Are The Penalties?
You need legal advice to answer this question. The length of any ban or fine will depend on the circumstances of the case including for example your breath reading and previous history. You should also consult a lawyer to see if there is a legal defence open to you.
The offences that you could be charged with include
failing to provide a roadside breath test
driving or attempting to drive the excess alcohol
being in charge of a motor vehicle with excess alcohol
refusing to provide a sample for analysis after being found in charge of a vehicle
refusing to provide a sample for nurses after driving or attempting to drive a vehicle