What Happens When You Get Caught Drink Driving

Note: this blog is not intended to give legal advice, just to document my own experiences.  It is best to consult with a lawyer for the most up-to-date and accurate information.

What happens when you get caught drink driving?
Firstly the police can breathalise you at any time out on the street.  They do not need a reason to pull you over and breathalise you, they can do a random breath test at any time.  Because the equipment they use out on the road is not always accurate, if the reading is over the limit, they will not tell you what the reading was, but rather will ask you to come back to the station for a second reading.

Once they have made the determination that you are over the limit from the first reading, you will not be able to drive your car any further.  You'll need to leave it parked exactly where it is.  The police will not even let you drive it 20m to move it out of a No Standing Zone.  If you have a passenger in the car, they can move it for you, or if the police are nice enough, they may even move it for you.

You will then be asked to accompany the police back to the station, and you will be placed in the back of their paddy wagon - it's embarrassing to say the least. 

If you happen to be carrying a bag with you, the police will take it from you before you enter the paddy wagon, the reason being that they don't want  you to use anything within your bag to hurt yourself or anyone else (such as a knife etc).

Back At The Police Station
When you get back to the police station, you'll be placed in a cell area where you will need to wait for them to call you to do a second breath test.  While you are waiting, the police will go through all the contents of your bag.  They itemise and record anything that was in there, and ask you to sign a document listing all of the items you brought with you.  That is to ensure that all items are returned to you when you leave the police station, and nothing is missing.  If they find drugs in your bag, then, according to the policeman that I dealt with, they cannot charge you for those drugs because it is deemed an 'illegal search', however it would be best to consult with your lawyer to double check that.  I suspect however that they may use that drug information in the police case against you to discredit your character.

The police will ask you random questions while you are waiting, and will be observing your behaviour, so it is best to act as maturely as you possibly can.

You will not be allowed any water or anything to drink or eat before the second breath test, just to ensure that it does not interfere with the accuracy of the second reading.

The police will then use a more sophisticated piece of equipment to conduct your second breath test.  The second breath test may be 20-30 minutes later than when you were first caught, which, depending on the circumstances of your drinking, may work in your favour.  The police will then give you your reading.  If the reading is mid or high range, then your license will be taken from you immediately and you will not be able to drive until the outcome of your court case.  If the reading is low range, you will not lose your license immediately, and thus can continue to drive up until your court case, however you may lose your license for a period of time as a result of the court case.

The police will give you some documentation, including the date of your court case and the location of your court case, and you will then be free to leave (assuming there are no other problems such as being charged for injuring another person or anything of that nature).

In Court with a Lawyer
First mention:
Your lawyer will plead guilty or not guilty on your behalf.

Usually your matter will be adjourned for approximately 4-6 weeks to allow the Police enough time to prepare evidence.  A brief of evidence contains all the evidence that the Police intend to use at the hearing of the matter.  Generally police are not able to call upon additional evidence that was not contained in the brief of evidence and served on you 28 days prior to the hearing.

Police do not always serve the brief of evidence upon you by the date allocated by the Registrar. However as long as they provide a reasonable reason for not providing the brief of evidence by that date, the Registrar will typically give Police futher time to serve it.

Second Court Appearance:
Once the Police have served the brief of evidence upon you, your lawyer will ask the Registrar for a hearing date.

The Court Hearing
In the court, it is very production-line.  You'll be there with many other cases which are being heard on the same day, and you will be able to sit and hear the cases and the outcomes of the cases, and people will be sitting and hearing your case.  There will not necessarily be a set time that you are on, but rather you will sit and wait until your case is called. 

• Proof of Guilt - police must prove that you are guilty of the offence beyond a reasonable doubt.  If the magistrate has reasonable doubt, they may dismiss the charge. 

• The Police Case - The police will call witnesses to try and prove that you committed the crime.  Your lawyer may object to questions asked by the Police Prosecutor in some cases. Your solicitor may then cross examine the witness. After all witnesses have given evidence, the Police Prosecutor will close the Police case

• The Defence Case - If you plan on giving evidence, you will normally give evidence first. Your lawyer will ask you a series of questions designed to ensure you give all relevant details and evidence.   Your witnesses (if any) will then give evidence.   The Police Prosecutor and lawyer will then make submissions upon the evidence given.

• Magistrate Decision - The magistrate will make their decision on the evidence provided and will find you either guilty or not guilty and deliver the sentence.

Cross Examination Tips

1. Be natural. Rehearsed answers can sound artificial
2. Keep answers short - yes or no is often sufficient
3. Avoid arguments with the Police Prosecutors
4. Deliver in a calm and collected manner, don't be emotional in your delivery
5. Stick to the facts, don't exaggerate the details
6. Leave a small pause before answering any questions such that if your lawyer wishes to object to the question they can do so.
7. Don't attack the credit of the Police's Prosecutor's witness, your lawyer can do that.