Changes to drink-driving laws could see sober drivers being convicted of an offence
South Australia recently changed its drink-driving laws, controversially allowing individuals to be convicted of drink-driving, even if they were sober at the time they were behind the wheel of a vehicle.
For example, if there has been a traffic accident, the motorists involved are usually directed by police to submit for a breath test immediately. If for some reason any of the motorists involved leave the scene of the accident without being tested, they may be called upon to do so, within hours afterwards. If any of these drivers record a blood alcohol level over the legal limit, they have previously been able to present evidence that ‘intervening drinking’ may have affected their breath analysis result. However, the Road Traffic Act has been amended to remove this provision and extend the legal presumption that the result of a person's breath analysis test is deemed to have been their blood alcohol concentration for the preceding three hours (previously two hours), and therefore are assumed to have been drink-driving.
The primary aim behind these changes has been to assist in the prosecution of repeat offenders who used the 'intervening drinking' defence as a loophole to avoid conviction - even though this scenario was uncommon.
It is important to note that police officers can now immediately disqualify a driver's licence upon obtaining a positive result, leaving motorists in this situation with no alternative but to abstain from alcohol consumption less than three hours after driving.
To defend a charge of drink-driving, individuals must review whether all legal requirements relating to the conduct of the breath analysis were complied with. This is a highly technical area of law, and it is recommended to seek advice from experienced traffic lawyers, such as Scammell & Co Solicitors, who can advise individuals charged with drink driving or any other type of traffic offence.
Our lawyers can help you navigate the justice system and represent you in any court proceedings. They will examine your situation (including the facts and circumstances surrounding the offending). They will undertake any negotiations with Police Prosecution, pursue your defence at a trial, or prepare and conduct submissions in mitigation of penalty and if appropriate, an application for no conviction to be recorded.
For further information about the services offered by a Scammell & Co Traffic Offence lawyer, please follow the link HERE
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
How South Australia's Alcohol Interlock Scheme works and why it matters
Drink driving is a serious offence that puts lives at risk, and in South Australia, there are strict laws in place to deter drivers from getting behind the wheel while under the influence of alcohol.
One of the measures implemented to combat drink driving is the Alcohol Interlock Scheme. This blog explores what the Alcohol Interlock Scheme is, how it works, and why reducing the incidence of drink driving on South Australia's roads matters.
What is the Alcohol Interlock Scheme?
The Alcohol Interlock Scheme is a mandatory requirement for South Australian drivers disqualified from driving following a serious drink driving offence. The scheme applies to those drivers that have been charged with:
• a first Prescribed Concentration of Alcohol (PCA) offence with a blood alcohol reading of 0.15 or greater (ie. category 3 offence);
• a second or subsequent PCA offence with a reading of 0.08 or greater (ie. category 2 offence);
• drivers who refuse to submit to a breath or blood test for alcohol; or
• driving under the influence.
How does the scheme work?
After the offender has served their disqualification period, and before they can resume driving, they must have an alcohol interlock fitted to their vehicle’s ignition.
The interlock is a small breath-testing device which measures the level of alcohol in the driver’s system. If the sample is below the legal alcohol limit, the vehicle will start, allowing the driver to drive legally. However, if the sample exceeds the PCA limit, the vehicle will not start, preventing the driver from drink driving. If this is the case, the device will record the attempt and may result in your period on the scheme being extended.
The interlock remains fitted for the same length of time as the driver’s disqualification period.
What costs and conditions apply?
The alcohol interlock must be fitted by an approved provider. Drivers are responsible for all costs associated with the installation (approx. $400), rental (approx. $160 p/m), servicing, and removal (approx. $150) of the device.
Some of the scheme’s conditions prevent drivers from:
• driving a motor vehicle other than the vehicle nominated;
• driving the nominated vehicle unless it is fitted with a properly installed and functioning interlock;
• interfering with the interlock;
• driving without carrying a certificate issued by the interlock provider; and
• driving without P plates displayed.
If drivers are found to have breached any of the conditions, a maximum penalty of $2,500 and further disqualification can apply.
What penalties apply for drink driving?
Under South Australian law, drink driving with a blood alcohol concentration between 0.08 and 0.149, will result in the immediate loss of your licence for a period of 6 months, and 12 months for a reading of 0.15 or more. Loss of licence for second and subsequent offences of between 0.05 and 0.079 also applies. Loss of demerit points and heavy fines also apply for drink driving offences.
Why does the scheme matter?
The Alcohol Interlock Scheme is an effective tool in reducing drink driving incidents in South Australia. It not only prevents drivers from starting their vehicle while under the influence of alcohol but also acts as a deterrent for others. The program also ensures that offenders who participate are closely monitored and must remain sober while driving, significantly reducing the risk of accidents and fatalities on the roads.
How can a lawyer help?
If drivers are charged with an offence, a Scammell & Co lawyer can help you navigate the justice system and represent you in any court proceedings. They will fully examine your situation (including the material facts and circumstances surrounding the offending). They will undertake any negotiations with Police Prosecution, pursue your defence at a trial, or prepare and conduct submissions in mitigation of penalty and if appropriate, an application for no conviction to be recorded.
For further information about Scammell & Co's legal services for Criminal, Police and Traffic matters please follow the link: HERE
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
South Australian Motorists Cop Significant Increases To Fines For Driving Offences
Image courtesy govnews.com.au
The South Australian Government has recently announced a raft of increases to fines for speeding, mobile phone use whilst behind the wheel and drink or drug-driving. Whilst low-range speeding fines will only rise by 1.7 per cent, fines for people caught excessively speeding are set to soar. For example, motorists clocked at 30kph or more above the speed limit will be fined $1472 which represents a $552 increase, and motorists traveling 45kph over the speed limit will be fined $1658 – an increase of $622. Motorists caught using their mobile phones whilst behind the wheel, face a $534 fine which represents a $200 increase.
Business owners face heavy penalties if offending employees not named
A crack-down on thousands of speeding company vehicle drivers who have, up until now, taken advantage of a system loop-hole, will no longer be able to ask their bosses for anonymity to avoid a loss of demerit points. Currently, if a person is caught speeding in a company car, the business can choose to pay a $300 fine so the staff member doesn’t receive any demerit points. But from July 1, that fine will be upped to $1800 to deter companies from protecting staff that break the law. If the figures from 2017-18 financial year are anything to go by this could affect as many as 15,000 drivers annually.
As an additional speed deterrent on one of South Australia’s notoriously dangerous roads, businesses which fail to nominate the driver responsible for a camera-detected speeding offence on the South-Eastern Freeway down-track face a body corporate levy of $25,000, and if found guilty of the offence by a Court, face a fine of between $25,000 and $50,000.
Penalties for drink and drug driving offences have also increased from $613 to $743.
Overview of new legislation and penalties for the South Eastern Freeway
New laws introduced on 01 May 2019 specifically targeting truck and bus drivers in relation to the steep descent into Adelaide on the South Eastern Freeway are also worth noting. Penalties are designed to reduce heavy vehicle crashes involving brake failure and excessive speed. The changes have been introduced following two serious crashes involving out-of-control heavy vehicles – one in 2010 and the other in 2014, both of which resulted in fatalities. Consequently, heavy vehicle drivers must use low gears so as not to rely on the use of the primary brake as the sole means to slow the speed of the vehicle, and not exceed the relevant 60km/h speed limit. Expiation fees of $1,036 plus six demerit points, as well as a three-tier disqualification penalty (depending on the driver’s offence record) applies for offenders.
Under Australian road rules the following definitions apply to heavy vehicles:
A Truck is a motor vehicle with a Gross Vehicles Mass (GVM) of more than 4.5 tonnes, regardless of the vehicle’s body type (excluding tractors, trams and buses).
A Bus is a motor vehicle that seats more than twelve adults including the driver (regardless of GVM).
Below is a list of smaller vehicles also classed as a truck or bus (based on GVM or seating capacity) for the purpose of the new laws on the down-track of the South Eastern Freeway:
Vans and motor homes
Emergency service vehicles
Animal transport vehicles
School and tour buses
Cranes
Drilling rigs
Sweepers
Tip trucks
Tow trucks
Large utilities
Chauffeur vehicles
Taxi buses
If you are unsure if a vehicle is classed as a truck or bus for the purpose of the new penalties:
Check the registration or vehicle compliance plate
What are my options if I wish to contest an expiation notice?
Given the significant hit to the motorist’s hip pocket that these new fines represent, it is in a driver’s best interests to challenge a fine if they genuinely believe a miscarriage of justice has occurred. Scammell & Co. police and traffic matters lawyer Eugene Lagana explains "People should not feel that they have to pay a fine immediately just because it has been issued. Drivers should analyse the circumstances of the infringement to see what reason there might be for some leniency to be granted."
Instances where you may have a valid case to challenge a fine in court include:
In the event of a medical emergency; and if
Errors appear on the fine.
There could also be technical reasons why your fine may be challenged. For example, in instances where mobile radar cameras are used:
If, when it was coming towards you, the police car’s radar may not have locked on to your vehicle long enough to accurately calculate your speed (for example on a bend or around a corner);
Police officers can make a visual estimate of speed which could be open to conjecture; or
There may have been ‘reasonable doubt’ if there were other cars in a lane next to you which could have caused a case of ‘mistaken identity’.
In the case of fixed-position speed cameras there are limited options to contest a fine. Exemptions may be considered if for example:
If you can prove you were not the driver of the vehicle at the time an offence was detected; or
Where an equipment fault can be proven.
If you elect to be prosecuted and plead guilty to an offence that attracts demerit points, under Section 98B (4) of the Motor Vehicles Act 1959 (SA), an application to reduce the number of demerit points an offence incurs can be made. This is if the offence is classed as trifling or it is deemed there was proper cause to do so. It must be noted that the Court has said it will only take into account the circumstances of the offence, and not the personal circumstances of the individual when making a decision to reduce demerit points.
If you believe you have a valid reason to challenge a fine, it is important not to pay the fine and to contact Scammell & Co. as soon as possible to speak with a solicitor experienced in dealing with police and traffic matters.
Nobody likes receiving a speeding ticket. For a start, the fines are expensive and a complete waste of money. Furthermore, the demerit points put your ability to drive in jeopardy, which at worst may have negative consequences on your ability to earn a living, and at best be a major inconvenience to your day-to-day activities. For what it’s worth here are our top 10 tips for avoiding a speeding fine:
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
