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VIC Drink Driving Defence?

Discussion in 'Traffic Law Forum' started by songbird71, 6 April 2015.

  1. songbird71

    songbird71 Member

    6 April 2015
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    My situation is as follows:

    I was pulled over and breath tested by police. The officer said: "you have a little bit of wine on your breath" but did not tell me the reading. I happily acknowledged this, and knew I wasn't over 0.05.

    He then told me I have a zero condition on my drivers licence. I was genuinely unaware of this condition. I got my licence back 2.5 years ago after a first offence. I don't recall being advised about the zero condition. If I had been then I'd forgotten. I was under the impression that once the interlock was removed, I returned to a full licence with no conditions.

    They took my licence on the spot and I was then escorted to the station for a subsequent test. I was fully co-operative and believed there must be a mistake regarding the condition on my licence. I asked them when the condition expired but they were unable to tell me. I've since discovered that there is a mandatory 3 year zero condition from the time of licence restoration and that penalties for this offence increased after October 2014.

    I blew 0.034 at the station. I believe the first test reading would have been lower - first test was taken about 20 min after my last drink. I was not advised that I'm entitled to a blood test. I was then advised that my licence has been suspended immediately for a period of 6 months and I would receive a summons to return to court. I do believe the officers believed me when I told them I was unaware of the condition as they were sympathetic, but they didn't have a choice. They even told me that it's worth checking with Vic Roads to see if there was a mistake.

    I was issued with a Notice of Immediate Suspension - Section 51. At a later date, I was advised to collect further paperwork from the station. Upon collection I noticed that there was another form attached a copy of the suspension notice. It is:

    Withdrawal Of Notice Of Immediate Suspension - Section 51(9A)

    When I was finally able to speak with Informant, he advised me that the wording was incorrect in the first notice which is why they cancelled it an reissued it.

    Wording of first notice:

    'Have committed an offence against section which is a subsequent offence within the meaning of section 48(2) of the Road Safety Act 1986.'

    Wording of second notice:
    'Were tested for the presence of alcohol in your breath pursuant to the Road Safety Act 1986. That test indicates that you have committed an offence under sub paragraph (f) of section 49(1). The result of that test indicates a breath alcohol concentration of 0.034 grams per 210 litres of exhaled alcohol.'

    'This alleged offence is a subsequent offence within the meaning of section 48(2).'

    I would like to know if there is any defence for this? I have found one called:

    Defence of 'reasonable and honest mistaken belief'. Is this applicable and effective in this situation?

    Is there any defence surrounding the incorrect wording, withdrawal and reissue of notice?

    Also, does the judge ever take life circumstances into account? I'm a witness in a murder investigation (been summoned to testify) and I've been diagnosed with PTSD. I'm on a disability pension so have limited income with which to pay a hefty fine or pay for an interlock. I don't even own a car. I won't be able to have it installed in someone else's car which will leave me without a licence for the unforeseeable future.

    I don't believe I'm a hazard on the road. I don't have a problem with licence suspension - they can suspend or cancel for as long as they want but I think it would be unfair of the courts to subject me to heavier penalties considering the circumstances.

    Any help would be greatly appreciated.
  2. Rod

    Rod Well-Known Member

    27 May 2014
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    Sorry, don't know the answer to your question.

    Just to add a little bit of info here, the defence you mentioned is available if the offence is one of strict liability. If the offence is an absolute liability offence then the defence you mentioned is not available. Do some googling on these terms to help you better understand it means to you and your defence and see if you can find out if the offence you have been charged with is one of strict or absolute liability.

    I suspect though the prosecutor will be arguing that you were told, possibly in writing, that you have a condition on the reinstatement of your license. If this is the case the Magistrate is likely to say that 'a reasonable person would have been aware of this condition' and therefore this defence is not available to you.

    See if you can find the court paperwork to your first offence. If it doesn't mention the zero alcohol condition you MAY have a chance.

    Life circumstances do not apply if the offence has mandatory sentencing. ie the Magistrate has no discretion in sentencing.

    Police can withdraw charges at any time and re-issue charges at any time. The only issue for you is whether or not you incurred a loss as a result of them issuing and then withdrawing a charge. If you had a loss of some kind, you may have a case for the reimbursement of your costs however that is not the situation here.
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  3. songbird71

    songbird71 Member

    6 April 2015
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    Thanks for info Rod.

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