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.

Demerit points can lead to a loss of licence, but there may be options to keep drivers on the road

In South Australia, drivers start with zero demerit points. If you gain more demerit points than your licence conditions allow, then you will likely lose your licence by way of disqualification. You can check the status of your driver’s licence on your mySA GOV account or by purchasing a driver’s licence report from Service SA.

If you commit a traffic offence, you might receive an expiation notice with a fine. If the fine is paid, then the offence will be expiated. In effect, this means that the offence was committed. Therefore, the standard demerit points will apply on your licence from the date of the offence (not the date of the expiation notice being paid).

Alternatively, you can elect to be prosecuted and apply to the Court for a reduction of the demerit points applicable to the offence. For example, by reducing the demerit points from 3 to 0.  If you do elect to be prosecuted, the expiation notice will be withdrawn and a Court date set for your matter.

In making the application, you must give evidence on oath regarding the circumstances of the offence itself. The Court will then decide whether the offence was ‘trifling’ or ‘proper cause’ exists to reduce the demerit points. The Court cannot take into account your personal circumstances or the hardship to be suffered by you as a result of a loss of licence.

If you wish to make such an application, it is important that you receive legal advice before paying the fine or electing to be prosecuted. Scammell & Co lawyers are highly experienced in dealing with traffic offence matters and can assist you by advising on the merits of your application and any additional fines and penalties that the Court may order.

For further information on your options relating to Traffic Offences 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.

Updated dangerous and reckless driving laws now attract heavier penalties.

Latest SA Police figures reveal that a quarter of road fatalities recorded so far this year can be attributed to dangerous driving. Examples of this type of behaviour include:

An amendment to the legislation relating to dangerous and reckless behaviour and providing for heavier penalties, in particular longer periods of imprisonment, was recently brought into effect, to discourage hoon behaviour on South Australian roads.  For example, at the discretion of the courts, first-time offenders convicted of driving at 55km/hr or more above the speed limit could be gaoled for up to three years and face a mandatory minimum two-year licence disqualification. Moreover, the imprisonment and disqualification period could increase to up to five years for subsequent extreme speeding offences. This would also apply if the speeding is done in conjunction with:

These new laws also give police the power to crush or even sell-off a driver’s vehicle after 38 days if the accused fails to pay up to $1,395.50 for the release of their impounded car.

If you are accused of driving at these excessive speeds, you will be issued with a summons to appear in court or even worse, arrested and presented to a court with the risk of not receiving bail and being remanded in custody. If you find yourself charged with such an offence, you should seek legal representation as soon as possible. A Scammell & Co lawyer will fully examine your situation (including the material facts and circumstances surrounding the incident). They will undertake any negotiations with Police Prosecution if there is insufficient evidence to convict you or we can identify a defence to pursue, assist you to navigate the court system, 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 services relating to police matters and traffic offences click here

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.

Losing demerit points due to driver distraction can put you at risk of losing your drivers licence. Here are your options.

Driver distraction is a major contributor to deaths and serious injury on SA roads. In an Australian Road Safety Foundation survey, a whopping 79 per cent of Australian motorists admitted to general risky behaviour. SA police figures show that between 2015 and 2019 43 per cent of fatalities and 48 per cent of serious injuries were attributed to distraction. So far, 24 lives have been lost on SA roads in 2020 (08 Aug) due to driver distraction.

Some of the traffic offences which can result from driver distraction include:

Despite the obvious dangers, a third of SA drivers surveyed admitted to regularly using their mobile phones in the illegal hand-held mode. SA drivers caught using a mobile phone while their vehicle is
either moving or stationary in traffic (for example, waiting at traffic lights) will be issued with a $544 fine, as well as a loss of 3 demerit points.

Drivers in receipt of a traffic infringement notice may wish to challenge their fine. Your options are either to defend the matter if your lawyer can identify a defence, or you can apply for a reduction of the demerit points if your offending was trifling in nature, or other proper cause exists relating to your driving behaviour.

Either way, it is important not to pay the fine, for even if you are guilty, once your fine is paid you will automatically lose the demerit points that we could otherwise have reduced to avoid a Notice of Disqualification issued by the Department of Transport and Infrastructure.

At your earliest opportunity, contact a Scammell & Co. traffic offence lawyer to discuss your options.

For further information about our traffic and driving offence services please click 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:

 

 

If you are unsure if a vehicle is classed as a truck or bus for the purpose of the new penalties:

 

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:

There could also be technical reasons why your fine may be challenged. For example, in instances where mobile radar cameras are used:

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 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.