A person may be charged with driving under the influence (DUI) which is a more serious charge of drink driving.
What court will hear the matter
This is a summary offence and will be dealt with in the Magistrates Court of South Australia.
What the prosecution must prove
The prosecution must prove that you:
- drove, or attempted to drive, a vehicle;
- you were under the influence of alcohol;
- you were incapable of exercising effective control of the vehicle; and
- your inability to control the vehicle was due to you being under the influence of alcohol.
It is possible for a person to be charged with driving under the influence even if the police did not take a blood alcohol reading.
Police when they are charging this particular type of offence, do not rely on breath analysis reading. They are assessing what faculties are impaired and thereby causing you to be charged with drink driving. The police traditionally assess the following:
- alcohol on the breath;
- blood shot eyes;
- unsteady on feet;
- unable to have an effective control of the vehicle; and
- incoherent and unable to form sentences.
There are a range of possible defences including, but not limited to, the following:
- you were not driving;
- you had not consumed alcohol;
- you could control the vehicle;
- your inability to control the vehicle was not related to alcohol;
- honest and reasonable mistake of fact (Proudman v Dayman defence);
- breath analysis conducted more than 2 hours after driving;
- the breath analysis machine was defective;
- police did not comply with their legal obligations.
Deciding whether or not to plead guilty has significant implications and should be made after discussing your case with our lawyers. If you decide to plead guilty to the offence, our lawyers can assist you to get the best possible results.
The maximum penalty depends on whether you were driving a motor vehicle or another type of vehicle and whether you have committed the offence previously.
If you were driving a motor vehicle but have not committed this offence previously, the maximum penalty is a $1,200 fine or 3 months imprisonment. You will also receive a driver's licence disqualification for at least 1 year and receive 6 demerit points.
If you were driving a motor vehicle and you have committed this offence previously, the maximum penalty is a $2,500 fine or 6 months imprisonment. You will also receive a driver's licence disqualification for at least 3 years and receive 6 demerit points.
If you were driving a vehicle other than a motor vehicle the maximum penalty is a $300 fine.