24 Comments Criminal law, traffic matters, DUI, assault, theft, fraud
In NSW there's no time limit for the blood test, it's only recommended that it be done within 12 hours which is just common sense seeing as though theres going to be very little trace of it after that time..
I'd imagine if anything then the fact that is was 5 hours later is only going to hurt your cause. That is a massive number 5 hours after drinking.
With the blood they can do a count back from when your blood was taken from when you were picked up by Police, taking your age weight height and gender into consideration. The whole point of the blood test is that it is undertaken knowing it wont be at the time of offence so without the count back there is no point doing it if the count back system wasnt used. So in essance so long as the time isn't ridiculously long, like 24 hours + the time wont be an issue.
The magistrate wont take the time into consideration, the whole point of blood is that you are alleging that the police BA instrument is not accurate, so unless your blood test results are way off it is not going to be of any help to you. Basically the blood test is you trying to prove that you were not driving PCA, you have to prove that the machine is wrong, not the Police trying to prove via your blood that you were PCA.
.165 is way over the limit, that's not miscalculating a few drinks, that's showing disregard for your own safety and safety for others on the road. The magistrate has to leeway in regards to your job in reducing the license disqualification. I assume you received an instant loss of licence on the stop, if so respect it because if you want any hope of receiving a lenient sentence it pays to not compound the issue by being caught driving disqualified.
Learn from your mistake, whilst it is serious it's not the worst thing in the world.
Getting a letter from your employer won't hurt you, I am just not sure if it will help you that much either.
teak70 2009-11-16 16:26:11
[quote]You must have been pretty smashed to have been 0.165, five hours later! [/quote]
Na mate, assuming it went down as per normal. Went to a Police Station for a BA and at that time returned the result of .165. As part of BA procedures POlice are obligated to offer you chance to get a blood test. What then happens is that they give you a blood test and it is up to the driver to organize that themselves, unless they have been arrested.
If they have only been reported for the offence, Police have no obligation to facilitate the test. If its not a busy night or they have time POlice will often take the driver to the hospital so they can get the test, but otherwise it is totally up to the driver to get the test taken by a doctor who then forwards the results on.
That's why you have a sample. By "Not sealed properly" they mean that the cops tore the seal off in the car park.
Okay, here's how it works. PCA has replaced DUI since PCA is a technical charge based on scientific evidence. The reason that this is preferred is because there is no requirement to prove that you where "Influenced" by alcohol.
So they thought that this approach would be bullet proof in court, however a technical charge opened up the possibility of a technical defense. That is, you could be as guilty as sin, but in all fairness get away with it because the scientific evidence has some scientific flaw.
Ever since the introduction of PCA, the Police have been under a directive from the "Breath Section" to never allow a PCA to fail in court. In the early days this was great, because if you brought their evidence in to question, they'd drop it before it even went to court. In other words, they'd simply "let you go"
These days, things are a little different. Fourty years of experience has taught them to be a little bit cunning, and they will stop at nothing to make a PCA stick, even if it means tampering with evidence or lying in court. They don't mind putting their personal integrity on the back burner for a while while they shamelessly commit perjury because they know that you're guilty.
It is still possible to defend a PCA, but it will cost you a lot of money and will still be a bit of a gamble, since you might not win.
Have a go at a defense, or take the rap. The decision is yours to make.
Hi Princess, sorry to rain on your parade, but in SA you will be fined $700 - $1200 and you will lose your license for a MINIMUM of 12 months. Those are enshrined in legislation and not to be usdermined by the courts for a Category 3 offence (one where the BAC is over .15). People have argued PCA and won - (Read Tann v Schild and Ujvary v Medwell and SAPol v Briggs) but these relate to the defendant not being given the right to have a blood test (for all different reasons). However in applying the accuracy of the Breath xysis test case law called Bunning v Cross is used. This shows that the public interest in securing a conviction for an individual drink-driving offence will
rarely outweigh the public interest in protecting the citizen's right to have the results of the breath xysis checked by means of a blood test. So what this means is that if you are questioning the accuracy of the breath xysis you need to support this with the results of the blood test. So when your results come back see what they show - it is suggested that the average persons BAC will drop approximately .02 per hour (that is only an approximate) so taking into consideration the time lapse your BAC should be somewhere between .06 to .10 or there abouts at time of blood test to be consistent with the .165 at time of driving. It is a very complex law and one which is tested constantly by people trying their hardest to get out of it. But realistically you are probably better off biding your 12 months (which should have started from the time you were caught - as in SA it is automatic loss of license) and if necessary (and if you are eligible) you can apply for an alcotest to be attached to your car after you have completed at least 50% of your penalty, this will all be explained in court. But ion the majority of cases the result of the BA is classed as accurate unless you can prove its not ( or that the officer is not properly qualified or some other such thing).
ap, are you saying that in S.A. you can apply for an alco interlock device to be fitted after 50% of your disqualification period is served, but if you don't then it will be mandatory to have it fitted at the end of your disqualification period anyway??
I always thought that if you were granted the application to have one fitted after 50%, then you had to have it fitted for double the time of the disqualification period that was left to serve, but if you didn't have one fitted for the entire length of your disqualification then you did not need to have one fitted at all
I have been told conflicting info on this.... are you or anyone else able to clarify this with some certainty ?
Thanks in advance
No. Mandatory alco interlock only comes into effect with repeat offenders, after they complete a disqualification they will have a mandatory requirement to put an alco interlock system on their vehicle. If you check the DTEI website it goes into detail about the current system which changed in May 2009.
And, if you request one, which some people do so that they can commence employment again or other such reasons, then one can be fitted after 50% of your disqualification has been served, but there are all sorts of different matters related to voluntary AIS and you have to eb eligible to get one (i'm not sure what the exact eligibility requirements are though) ALSO, it costs about $4500 to fit one voluntarily.