Case Assessment – NSW DUI Court Bible

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1. Assess the charge & Court Attendance Notice
2. Assess the Police Facts Sheet
3. Assess whether you have any defences
4. Decide on your plea (Guilty / Not Guilty)

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STEP 1: CASE ASSESSMENT

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Assess the charge & Court Attendance Notice

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Assessing the charge

Once you have been arrested you will be given certain police arrest documents, which outline a number of issues, related to the specific law that you have been charged with breaking.

Your charge will be listed on the Court Attendance Notice, it will list the name of the law and the section of the legislation that applies to your charge.

It is a good idea to look up the section of the legislation that you have been charged with just to make sure that you have correctly been charged with the right offence. You can generally find the correct legislation at the following website – www.austlii.edu.au

By assessing the offence that you have been charged with you will be able to research that particular offence and the penalties that are generally issued to such offenders. Having a general understanding of your offence and what views the Courts and community takes on your offence is one of the first things you should doing in getting a grounding of the situation that you find yourself in.

Court Attendance Notice

Being fully prepared for a court appearance is the best thing that you can do to make sure that your matter runs smoothly and provide you with the best chance of receiving a more favourable outcome.

It is critical that you know the schedule for your set court appearances. After you have been arrested and charged with an offence you will be given a Court Attendance Notice (C.A.N.) which details the date, time and location that you will be required to attend court for your first appearance. In most cases, the date will be a few weeks following your arrest, granting you sufficient time to prepare your approach to enter a plea (“guilty” or “not guilty”).

Again, if you fail to be present on that date, chances are your matter will be dealt with in your absence. Not only that, the Magistrate may also issue a warrant for your arrest. So, jot the date down in your planner or diary or tell your family and friends remind you – anything that would make sure that you do not forget it!

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Example Court Attendance Notice (C.A.N.)

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Assess the Police Facts Sheet & Breath Analysis Certificate

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Police Facts Sheet

Following your arrest the Police may or may not provide you with a copy of the Police Facts Sheet. This is usually provided to you in conjunction with the charge sheet and the Court Attendance Notice.

The Police Facts Sheet simply outlines all of the facts that the Police deem relevant in relation to the arrest and charge. Any comments made by you to the Police will more than likely appear in the facts sheet as well as any Police observations and information that they feel necessary to substantiate the charges laid against you.

Once you have had time to comprehend the arrest and charge it is a good idea for you to carefully go through and assess the Police Fact Sheet since these are the facts that the Police Prosecutor will rely upon in court at your final sentence hearing.

It is important that you understand what facts the Police will be relying on so that you can prepare responses to such facts and be able to have your side of the story heard before the Court. Generally, the Police facts are created by the Police Officer In Charge (‘OIC’) who will usually have standard pre-written template statements that they insert on all fact sheets in order to satisfy their general polices powers, responsibilities and obligations.

For example Police need reasonable suspicion to suspect that a person has been drink driving before subjecting them to a breath test, so often the Police will state in their facts sheet that “the accused had blood shot eyes and their breath smelt of strong liquor”. Whilst you may disagree with such a statement there is not much you can do about this if you have been found over the limit. The Courts generally understand that Police uses these types of statements regardless of how intoxicated a person is.

However, if the Police include other specific facts in the Police Facts Sheet which do not relate to the elements of the charge and which also appear prejudicial to your case then you should consider taking action to have such facts remove. For example if the Police Facts Sheet says that you were speeding whilst taking on your mobile before being pulled over by Police but they did not issue you with an on the spot traffic infringement or charge you with those additional offences then you should seek that those facts be removed from the Police Facts Sheet. Such statements can only make you look worse in the eyes of the Magistrate and can be viewed as additional aggravating features. If such prejudicial statements are included by Police but are unable to be substantiated then you must look at have them removed before the Police Facts Sheet is handed up to the Magistrate at the first court mention.

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Example of standard Police Fact Sheet for a drink driving matter in NSW.

We will discuss in further detail on how you can go about requesting that amendments be made to Police Fact Sheets – See “Preparation in disputing or seeking amended police facts sheet” in Step 3.

Breath Analysis Certificate

Once you have been charged with a drink driving offence, police are obliged to provide you with evidence showing the blood alcohol result obtained from the police breath analysis instrument used to calculate your blood alcohol.

A “Certificate Under Schedule 3 of the Road Transport Act 2013” will be provide which outlines the following points:

That the person signing the certificate is a police office authorised by the Commissioner of Police to operate a breath analysis instrument;
Your name and address and that you were submitted to a breath analysis;
That the breath analysis instrument used was in accordance with the Road Transport Act 2013;
The time, date and location the breath analysis was conducted;
The blood alcohol concentration reading produced by the breath analysis from 210 litres of breath from the accused;
That a signed statement by the Police Officer was provided to the accused.

It is important that you carefully peruse this Schedule 3 Certificate to make sure that all of the details are true and correct. In very rare circumstances the details of this certificate can be used in order to bring a defence for your charges in court. In any event it is prudent for you to make sure that the time, date, location and blood alcohol reading reflects the details that have been provided for in the Police Facts Sheet.

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Example of a Section 33 Blood Alcohol Certificate.

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Example of Breath Analysis Record.

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Assess whether you have any defences

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You will find that in most drink driving cases there are no defences available to the accused. This is generally the case because Police used very accurate instruments to tests people’s blood alcohol concentration and they have also perfected very tight procedures in arresting and charging drink drivers so that they are unable to raise defences in Court.

However, in saying this, Police and the Police procedures they carry out are always prone to human error. Below we will discuss the main defences that are available to drink drivers in very specific circumstances.

Challenge a Blood Alcohol Reading

There is a common belief within society that you cannot challenge a PCA reading that has been calculated by a Police breath analysis instrument. The reality is you do have the right to challenge the breath analysis reading if you sincerely believe that it is incorrect.

Whilst you can challenge the reading it should be noted that the Police breath analysis instruments are extremely accurate and generally very well maintained. In the past these Police breath analysis instruments may have been less accurate and poorly maintained however this is no longer the case as the police now realize the importance of accurate blood alcohol readings as evidence. Even science experts maintain that Police blood alcohol readings are extremely accurate.

For this reason successfully challenging a reading is not an easy process and should not be considered just because you have a hunch that your blood alcohol reading was lower than what was registered by the Police instrument.

Police procedure is to subject you to a breath analysis as quickly as possible so that the reading will be as accurate to the true reading of your blood alcohol at the time of driving.

You may decide to challenge a reading where you have been tested by the Police quite some time after the time you were pulled over for driving.

The law says that Police must perform a breath analysis within a 2 hour period after the event of driving occurred. However, if you had consumed alcohol just before you began to drive and then there was quite some delay in time before the Police were able to conduct the appropriate breath analysis reading using their breath analysis instrument then a scientific expert may be able to provide evidence showing that your blood alcohol was different at the time of testing compared to the time you were caught driving.

You need to understand that your blood alcohol levels will go up and down depending on the time in which you consumed the alcohol. Thus, the time that you are subjected to a Police breath analysis you may deliver a blood alcohol reading that is not truly representative of the time in which you were driving.

The circumstances when you may wish to seriously consider challenging a reading is when you may have consumed some alcohol just before driving or if your honestly believe that the blood alcohol reading presented by the Police is completely incorrect.

An expert report may very well show that at the time of driving your blood alcohol concentration was lower than what you were charged with. Depending on what you were charged with this may very well reduce your blood alcohol reading down to a lesser charge category (e.g. from middle range to low range) especially if your charged reading is just of the limit of a specific drink driving range.

Challenging a reading can be expensive because you will generally need to obtain a report from a qualified Pharmacologist. Such a report can cost anywhere between $1000 to $2000 or more. If you are interested in challenging a reading then you can find out where a qualified Pharmacologist is located by contacting your local University.

Professor Graham Starmer is a well known Pharmacologist in Sydney who has been known to prepare report in drug and alcohol related matters (his contact details can be found in the members resource section).

It is recommended that you obtain the services of a Lawyer should you wish to run a defence based on a challenge of the blood alcohol reading that you have been charged with.

Honest and Reasonable Mistake

The defence of “Honest & Reasonable Mistake” exists in relation to many criminal offences, it is no different with a drink driving or PCA offence. However, whilst this defence does exist in practical terms it is a very hard type of defence to prove beyond a reasonable doubt.

It must be shown that you honestly and reasonably believed that you were not under the influence of alcohol. A recent decision in the matter of DPP v Bone [2005] NSWSC 1239 showed that it is possible to argue a defence of honest and reasonable mistake for strict liability drink driving offences, but as previously mentioned such a defence is very hard to prove.

A drink driving offence is a strict liability offence, which means that the offender can been found guilty of the offence even if he or she does the act without a mens rea or a “guilty mind”. The onus is generally on the driver to prove that you are not guilty of the drink driving charge.

This is a hard defence to prove since you would need to prove to a Court that you were unaware that you were affected by alcohol – obviously the difficulty comes from the fact that most people are well aware that they have consumed alcohol since it is an act done by themselves. Having consumed any amount of alcohol you run the risk of being somewhat affected by the substance.

In some circumstances where you honestly believe that you were under the limit then you need to provide substantial evidence to show why you were of this belief. Using your own handheld breathalyzer will generally not be sufficient to prove this defence since the majority of hand held breathalyzer are not as accurate as the police blood alcohol analysis machines.

This is a very hard defence to prove within the circumstances of drinking and driving – however if your feel very strongly about the fact that you honestly and reasonably believed that you were not affected by alcohol then you should contact a specialist drink driving lawyer to discuss your situation and the possibilities of running such a successful defence.

2 Hour Rule

It will be up to the police to show and if need be prove in Court that you registered a Blood Alcohol Concentration (BAC) reading over the specified legal limit at the time you were operating a motor vehicle.

Police procedures involve creating a Breath Analysis Certificate, which is generated by the Police breath analysis instrument at the time of testing. Police are obligated to provide you with a copy of this Breath Analysis Certificate.

One possible defence that may arise out of this situation relates to the time period in which Police conduct the breath analysis. Police are obligated by law to conduct the breath analysis or take a blood sample within 2 hours after the event or time in which a person was operating a motor vehicle.

Any evidence produced by Police which fails to follow these policing and procedural obligations MAY be found to be inadmissible subsequently the charge may be dismissed or reduced to a lesser charge.

Often situations where an accident has occurred and the Police arrive sometime later to assess the situation and perform a breath test or transfer you a hospital or medical clinic for a blood test then this can result in the procedure being performed outside of the 2 hour window.

Again it is advised that you contact a specialist drink driving lawyer should you suspect that you may have defence under the 2 hour rule.

Home Safe Rule

Equally unknown is the ‘home safe’ rule. This rule states that it is illegal for the Police to require you to submit to a breath test at your home. As with the 2 hour rule, if Police breath test you in breach of that rule then you may be able to have the evidence of your blood alcohol reading thrown out of court.

Police are not allowed to perform breath analysis tests on you once you have entered your usual place of residence. Such a procedure is unlawful and any breath analysis tests performed in such a way may be inadmissible in a Court of law, which would make it more difficult for Police to prove their case.

Usually if a person is at their place of residence and Police can prove that they were operating a motor vehicle then they will, and are allowed to, perform alternate tests including general observations such as:

Smell alcohol on breath
Observe glassy or bloodshot eyes
Observe you to be unsteady on your feet
Notice slurred speech

If Police witness you driving erratically or find alcohol in your vehicle then these observations can also be included as evidence against you.

Generally in these circumstances Police will rely on the charge of Driving Under the Influence and rely on generally observations as opposed to breath or blood analysis results as evidence.

However, for the purpose of running a defence it is possible to have evidence dismissed should the Police not act lawfully in relation to obtaining a breath or blood sample.

The precise legal meaning of what is a person’s home is complex (eg. is the driveway of a block of units your home?). However, if you think you may have a possible defence on this basis then we recommend that you contact a specialist drink driving lawyer.

In fact, it is generally prudent to speak with a specialist drink driving lawyer if you suspect that you may have an appropriate defence to present before the Court. As mentioned above drink driving matters are offences of strict liability which means that Police do not need to prove that you acted with a mens rea or a “guilty mind” but instead the onus is on you to prove that you are not guilty of the specific offence laid against you.

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Decide on you Plea (Guilty / Not Guilty)

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So, should you plead guilty?

Due to the vast array of alcohol-related offences within our community, the police have worked hard over many years to obtain the technology, procedures and laws that work in their favour to easily prove that a person is guilty of a DUI type of offence. The breath testing instruments and blood sampling procedures use scientific technology to decide the Blood Alcohol Concentration (“BAC”) level within one’s body. Subsequently, there are very specific traffic laws and alcohol thresholds in place outlining exactly what is legal and what is illegal, it tends to make the majority of DUI type matters relatively black and white for the offenders. Either you were over the blood alcohol limit and are “guilty” of an offence or you were not.

The majority of people who appear before a court on a DUI type of charge often plead guilty. There is generally little point in pleading not guilty when the police will in most cases have such strong evidence to prove that you were in fact over the legal limit.

Even issues such as the validity of laws in relation to the offences, powers of the police to test people, as well as the accuracy of testing devices have all been tried and tested in the courts over the years.

When a plea of guilty is submitted, the defendant will usually straight away obtain a discount in terms of the penalty. The reason for this is that an early plea of guilty not only saves the courts time in running a contested hearing but it also shows an element of remorse on behalf of the defendant. So in short, if it is obvious that you are “guilty” of a DUI type of offence or any criminal offence for that matter then the earlier the guilty plea is entered, the better.

Below is a checklist designed to determine if a plea of guilt is the right course of action. Should you answer “No” to any of the following questions, you should opt to seek legal advice for a not guilty plea.

Were you in control of the motor vehicle (including driving, steering, starting, or sitting in the drivers seat in control of the keys) when apprehended by the police?
Was the incident on a public road or a road-related area such as hotel parking area, public reserve, state forest, service station, or the like?
Have you consumed alcohol within the 12 hours prior your apprehension (PCA only)?
Was either a blood test or breath analysis performed on you?
If by blood test, was a roadside sobriety test administered by the police or were you involved in an accident?
If by breath analysis, were you tested by a proper breath analysis instrument in addition to the roadside test (PCA only)?
Was your breath test or blood sample taken within two hours of the event of driving the vehicle or being involved in an accident that led to your apprehension?
Were you tested at a place other than your usual place of abode (i.e. your own home/driveway)?
Are you satisfied that the police operated the test equipment accurately?

Please Note: Defences in relation to the number of drinks consumed, or not consumed, are very unlikely to be favourable. Often, people charged with alcohol-related driving offences have claimed and actually believed to have had only two or three drinks, whereas the reading is indicative of five or six. The truth is, Magistrates consistently find in favour of the equipment rather than defendant’s memory.

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Decide if you require a lawyer

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It is no secret that engaging a lawyer to represent you can be a very expensive process. So it begs the question as to whether or not you should obtain a drink driving lawyer to act for you. Unfortunately, the answer is not as clear cut as YES or NO – it really actually depends on a whole range of factors, some of these including:

A. The offence

B. Aggravating features

C. Multiple offences

D. Prior traffic history

E. Your confidence

F. Legal defence

G. Affordability

In order to gauge whether you will require the services of a professional legal practitioner who specializes in drink driving and traffic matters we will discuss the above 7 issues in more detail. This should then provide you with a better understanding of what a lawyer can do for you and what you can actually handle yourself.

A. The offence

If you have been charged with a relatively common type of traffic or drink driving offence then you probably do not need to engage a lawyer. If the offence is considered very high range, well above a blood alcohol limit of 0.150 then you may wish to engage a lawyer who can at least advise you of the potential risk of receiving a sentence more serious than a fine and a licence disqualification.

Sometimes the blood alcohol reading can be so high above the legal limit that the Magistrate will consider giving you other sentences including community service, suspended sentence, periodic detention, Intensive Correctional Order (ICO) or even a full time custodial jail sentence. Certainly the Magistrate has the power to exercise its discretion in sentencing an offender to these sentences should the offence be serious enough.

If you believe that your offence is of an extremely serious nature then you may wish to seek some preliminary advice from a lawyer to assess the likely sentences you may receive.

Alternatively, if your offence is of a relatively common nature (i.e. suspended driving, refuse breath test, refuse breath analysis, drug driving, special range PCA, novice range PCA, low range PCA, middle range PCA & even a high range PCA offence) then depending on other factors discussed in this manual you should be able to represent yourself without the need of engaging a lawyer so long as you are able to grasp and understand the information provide to you in the NSW DUI Court manual.

B. Aggravating features

Aggravating features of a drink driving offence generally relate to the seriousness of the offence and the potential for risk of injury or damage to occur due to surrounding factors relating to the offence. For example common aggravating features that can often be associated with drink driving offences include:

Level of intoxication (in High Range PCA the level of blood alcohol above 0.150 – the higher the level the worse the aggravating feature);
Whether you were pulled over by police for speeding or driving in an erratic manner;
Area offence took place – if in a busy area or an area where there is a school or a lot of pedestrians which increase the potential risk of injury;
Whether there were other passengers in the vehicle, especially serious if children passengers;
If you were involved in, or caused an accident;
If anyone was actually hurt or injured;
Driving on a suspended, disqualified or cancelled licence;
Charged with other traffic offences;
Poor prior traffic or criminal history;
Being on a Good Behaviour Bond;

Each matter is different and there may exist other aggravating features that have not been mentioned above. However, at the end of the day if there is injury or damage or the higher the potential for injury or damage then you can almost guarantee that the Court will take a dim view of your case and your matter will be dealt with more seriously.

C. Multiple offences

If at the time of the incident you were charged with multiple traffic offences then you can almost bet that the Court will view your actions as further disregard for the laws. It is common to see people who have been pulled over for speeding offences or talking on a mobile phone whilst driving, then upon a routine breath test they are found to also be driving whilst intoxicated. These types of situations show the Court that the driver was not only driving whilst drunk but they were also driving in a manner which raises the potential for risk of injury or damage to the public.

Multiple offences or other offences in addition to drink driving offences are seen as aggravating features to a matter. Depending on how serious the additional offences are, you may consider seeking legal advice or engage a lawyer to represent you in Court.

If your additional offences are major traffic offences (e.g. negligent driving, dangerous driving, high range speeding etc) then it is advisable that you obtain the use of a lawyer. However, if the other offences are only minor traffic infringements then depending on other factors you should feel confident that you can use this NSW DUI Manual to represent yourself.

D. Prior traffic history

Your prior traffic history is a major determining factor in how the Court will view your case. If you have a history of offending behaviour, in particular with other drink driving offences or major traffic offences then the Court will come down hard on you regardless of the mitigating issues that your raise before the Court.

If you have 1 or more prior drink driving offences or other major traffic offences within the previous 5 years of your current offence then the legislation provides for greater penalties and sentences. If you do have a traffic history like this then you should consider obtaining a lawyer or at very least obtaining some legal advice.

If you have prior drink driving offences or major traffic offences on your history but they occurred outside of the past 5 years then they will certainly be looked at closely and taken into account by the Magistrate when it comes to sentencing a person for their current offence. It is more likely that you will receive a harsher sentence.

You should have a good idea of what your prior traffic history is like and if you are concerned about it and how it will reflect upon your existing offence then you should consider obtaining a lawyer or a least seek some legal advice.

E. Your confidence

Having the confidence to get up before a Magistrate in a Local Court can at the best of times be a daunting task, especially when you are the one who is in the firing line. However, the best way to overcome this is to have a full understanding of the Court processes, the law, your offence and having a well prepared case to present to the Court. Throughout this NSW DUI Manual we will provide you with the very best information to provide you with the knowledge and information to guide you through the process in order to help you get the best result possible.

By knowing what to do, what to expect and by being fully prepared for going to Court you will gain a large amount of confidence in being able to represent yourself. However, if you have made your way through this NSW DUI Court Manual and you still feel extremely anxious and nervous about representing yourself. Then you may wish to consider obtaining the services of a lawyer if you can afford it.

F. Legal defence

If you have gone over the brief rundown that we have provided you on legal defences for drink driving offences and you sincerely believe that you may have a sustainable defence to raise before the Court then we advise that you obtain a lawyer to at least advise you on the prospects of a successful defence.

Running a defended Court hearing is quite a complex and involved process which should only be undertaken by a professional legal practitioner who has vast experience in running defended criminal hearings.

G. Affordability

Yes that’s right affordability of a lawyer is generally one of the biggest hurdles to obtaining legal representation, and that is not specific just to drink driving matters but all legal matters that go to Court.

That is predominantly why we have created the NSW DUI Court Bible so that you can get the inside tips and information on how to successful handle and manage your own drink driving Court case without doing yourself any disservice.

To obtain the services of a lawyer to run your drink driving matter will generally set you back anywhere between $1,000 to $3,000 plus GST. If a lawyer is purporting to charge you more than $3,000 for a relatively simple guilty plea for a drink driving matter then you should seriously consider looking around to see if there are other more price competitive options out there. Alternatively, if a lawyer is charging you less than $1,000 to run a similar matter then you should consider whether the lawyer is prepared to provide your matter with the appropriate care and consideration that your case requires.

So it is generally these expensive legal costs which pose a barrier to obtaining a lawyer or on the other hand we have noticed that a common attitude amongst people who have been charged with drink driving is “why should I fork out that much money when I can go before a Court myself and do what a lawyer does and get the same result”.

At the end of the day it is a decision that you are going to have to carefully consider. If you are reading the DUI Bible then you have already outlaid a small amount of money in understanding exactly what is involved in running a guilty plea for a drink driving matter in a New South Wales Local Court. But if after reading through this manual you believe that you would be better off in obtaining a lawyer to represent you then you should do so if you are able to afford it, and you will be well advised and informed on how to instruct a lawyer in running your matter for you.

Alternatively, if you, like many people are unable to afford a lawyer or for whatever reason do not decide to engage a lawyer to represent you then you will be well prepared in being able to self represent yourself in Court so long as you cover all issues discussed in this manual.

Summary

At the end of the day this manual will provide you with a vast amount of quality information to help you through the Court/Legal process to help you get the best result possible for you, but it will ultimately be a decision that you need to make as to whether or not you feel comfortable in handling the whole process on your own. People appear self represented in Court on these types of matters everyday of the week and often get themselves good results especially if they are prepared and have an understanding of the laws and the Court/Legal process.

Ready to move on?

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LEGAL DISCLAIMER: The information provided in the “NSW DUI Court Bible” is NOT legal advice and we do not hold ourselves out to be offering legal advice. We have no claim that this information should be taken as legal advice in replacement of seeking out the services of a legal practitioner.