Drink Driving – What not to say

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In New South Wales, Australia, police have the power to subject you to a breath test for alcohol in two circumstances:

1. Random Breath Test; or

2. The police notice that you are driving in a way that may be reckless or dangerous and suspect that you may be under the influence of alcohol or drugs.

When this happens, you will need to follow their orders and blow or count from 1 – 10 into the breathalyser. The breathalyser will then give a reading on a digital screen. This device is extremely accurate and can accommodate obtaining a sample from even a person suffering from emphysema.

If you are the holder of a full licence and the reading is more than 0.05, then the police can charge you with the offence of “drink driving”.

We encourage you to print the table below and store a copy of it in your wallet. That way, the next time you are considering getting behind the wheel of a car after drinking alcohol, you can look at the penalties and ask yourself, “is it really worth it?”.

Maximum Jail Statutory Minimum Disqualification Period Automatic disqualification Max Fine Offence
NIL 3 months 6 months $1,100 Novice range 0.00 – 0.019
NIL 3 months 6 months $1,100 Special range 0.02 – 0.049
NIL 3 months 6 months $1,100 Low-range 0.05 – 0.079
9 months 6 months 12 months $2,200 Mid-range
Mid-range 0.08 – 0.149
18 months 12 months 3 months $3,300 High-range Over 0.150
9 months 6 months 12 months $2,200 Driving under the influence (DUI)
18 months 12 months 3 months $3,300 Refuse breath analysis
NIL NIL 6 months $1,100 Refuse breath test
18 months 12 months 3 years $3,300 Wilfully alter blood concentration

Depending on your reading, the police can either escort you to a Police Station or they can issue you with a small, yellow slip called a Field Court Attendance Notice and allow you to keep your driver’s licence. This handwritten document contains the details of the offence, your court date and location. It does not contain all the details and usually Police will later post more paperwork (which is typed) to your home address.

The typed paperwork you receive in the mail from the Police Station is called a “Facts Sheet”. This document is written by the police officer and is a simple story as to the circumstances surrounding the charge. The “Facts Sheet” is the document the Magistrate reads if you plead guilty to the offence.

The Facts Sheet will include details of the conversation you had with the police, details of your appearance, details of your manner of driving, details of what you told police as to how many drinks you had and where you were driving to.

For example, many Facts Sheets include statements and observations by police like, “whilst dealing with the accused, it was noticed that his/her breath smelt strongly of intoxicating liquor. His/her face was flushed, his/her eyes were red, glassy and/or bloodshot, and his/her speech was slurred and he/she continually repeated herself or he/she was swaying when standing and was unable to walk in a straight line.”

You may even notice the police officer taking notes of everything you say. This is because your conversation will also be included in the Facts Sheet.

Therefore, be careful what you say to the Police. Try to be honest as to your alcohol consumption and do not be aggressive or rude. Importantly, always treat the Police Officer with respect, as you would want any other person to treat you whilst at work. Be patient and compliant with their demands and, if you are not sure, do not guess answers.

Myth 1: Many people are of the belief that asking for a blood test will help reduce the reading. This is generally NOT the case and we do not suggest you ask to be taken to hospital for a blood test as the reading is usually higher than the reading on a breathalyser. Once Police have a higher reading, they WILL rely on this result and not the lower result.

Myth 2: Another myth often heard is that it is better for someone to refuse or to try to fail to provide a sample sufficient for the breathalyser to result in a reading. The Police will often only allow you 3 chances to breathe into the device. If you fail or refuse to do so, the police can charge you with the offence of “Refuse breath test”. This offence has the same penalties as being charged with “high range drink driving”. This means that the Court can assume your reading is higher than 0.150 and in fact could have been so much higher that you deliberately refused to provide a reading.

If your reading is quite high (for example mid-range or high range), you may be escorted to a Police Station where your driver’s licence will automatically be suspended. Please ensure you DO NOT participate in a Record of Interview if asked. The Police cannot hold this against you as you have a right to silence. In saying that, you are required to answer some standard questions, like provide them with certain details such as your name, address, date of birth etc. Please ensure to be polite and answer these questions. If Police ask you any further questions about the charge, you are permitted to refuse to answer.

In many cases, it is easy for a driver to become angry and aggressive. If you are in this situation and you start to become angry, just always remember, anything you say will end up in the Facts Sheet and a Magistrate may read it. Lawyers can often negotiate with police to amend the Facts Sheet, however, this is entirely at the discretion of the police and they do not have to change anything.

Tips for surviving police questioning:

1. Be polite!

2. Be honest! Be honest about how many drinks you think you had! If you cannot remember exactly, then just give an accurate estimate.

3. Do not underestimate the police officers! Always remember that police officers deal with drink drivers every day – they can tell when you are lying and this will make it a lot harder for you later in court.

4. Right to Silence – You DO NOT have to participate in a recorded interview at the police station.

5. Keep calm! Take your time to think about the questions the police are asking you and what your answer is. If you honestly do not know the answer to something, be honest and tell them you do not know or cannot remember.

6. Call a lawyer! You should call a lawyer as soon as possible if you have been charged with drink driving. We will be able to give you immediate legal advice over the phone.

Author: Mariah Maltezos, Senior Criminal Defence Lawyer

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