Legal Information relating to
Driving Under the Influence

Driving under the influence is a more serious charge of drink driving. 

If you drive, or attempt to drive, a motor vehicle while so much under the influence of alcohol or drugs as to be incapable of exercising effective control of the vehicle, you will be charged with the offence of driving under the influence of alcohol or drugs. 

Police, when charging offence, do not rely on a breath analysis reading. In fact, you can be charged with DUI even if you are under the limit. Instead, police look to see what faculties are impaired. Police traditionally rely on the following observations:

  • alcohol on the breath;
  • blood shot eyes;
  • unsteady on feet;
  • unable to control the vehicle; and/or
  • incoherent and unable to form sentences.

There may be a myriad of reasons as to why a person would not be guilty of driving under the influence. They could have blood shot eyes and alcohol on the breath but that by itself does not give rise to establishing that their faculties are impaired. There must be something about the persons driving which draws the inescapable conclusion that their faculties are impaired. 

Caldicott Lawyers recently defended a person who suffers from diabetes and had given off halitosis (which has an ethanol type of smell) when pulled over by police. We successfully defended this charge of driving under the influence.
 

The maximum penalty depends on whether you were driving a motor vehicle or another type of vehicle, and whether you have committed the offence previously.

If you were driving a motor vehicle, but had not committed this offence previously, the maximum penalty is a fine of $1,200 or 3 months imprisonment. You will also receive a driver’s licence disqualification for at least 1 year and receive 6 demerit points.

If you were driving a motor vehicle, and you have committed this offence previously, the maximum penalty is a fine of $2,500 or 6 months imprisonment. You will also receive a driver’s licence disqualification for at least 3 years and receive 6 demerit points.

If you were driving a vehicle, other than a motor vehicle, the maximum penalty is a $300 fine.

If you do decide to plead guilty to drink driving, we can assist you to get the best possible result. Our team of specialist drink driving lawyers have extensive criminal law experience and know the best way to present your drink driving case before each of the Magistrates in the state.

Before proceeding to plead guilty, the first thing we at Caldicott Lawyers do is make sure there are no possible defences available to you. If there are no defences, we then proceed to make certain, as best we can, that you get the absolute minimum penalty.

We can offer you advice about the fines that may apply and how to pay them. We can also offer you advice about the alcohol interlock device that may need to be fitted to your car at the end of your licence disqualification period.

We are mindful that your car may be impounded or retained as a result of a prior drink driving offence. We will speak to the prosecutors before the event and ensure there are no hidden difficulties that you may not be aware of.

Deciding whether or not to plead guilty to drink driving has important implications and should be made after proper discussions with an expert criminal lawyer with experience in drink driving.

Call 08 8120 3783 to make an appointment with one of the knowledgeable lawyers at Caldicott Lawyers for assistance with your driving matter.

You weren’t driving

In some cases, the wrong person is charged with an offence. There are a variety of ways in which this can occur. It may be that there was an administrative error on the prosecution’s behalf, or, perhaps, the offender was carrying your identification on his person. Regardless, it is a complete defence to this charge if it can be shown that you were not driving the vehicle.

You had not consumed alcohol

In order to make out the charge of driving under the influence of alcohol, it must be shown that you were incapable of exercising effective control of your vehicle as a result of consuming alcohol. If you did not consume any alcohol, then you are not guilty of this offence.

You could control the vehicle

This offence of DUI relates directly to your ability to control your vehicle. If, despite having consumed alcohol, you are able to exercise effective control of your vehicle, then you will have a defence to this charge.

Your inability to control the vehicle was not related to alcohol

It may be the case that you experienced some difficulty in exercising control of your vehicle, however alcohol was not the cause. If there is evidence to support a claim that your inability to control your vehicle was the result of something other than the effects of alcohol, then you may have a defence o this charge.

Honest and reasonable mistake of fact (Proudman vs Dayman Defence)

If you genuinely believed that you were not under the influence of alcohol, and it was reasonable for you to hold this belief (e.g. it had been served to you without your knowledge), then you may have a defence to this charge.

Breath analysis conducted more than 2 hours after driving

Section 47K of the Road Traffic Act 1961 specifies a 2 hour period, commencing from the time of any alleged offence occurring, in which a breath analysis must occur. In the event that you are tested more than 2 hours after driving your vehicle, the results of the breath analysis will be inadmissible and, therefore, unable to be used for the purpose of proving the prosecution’s case.

The breath analysis machine was defective

Given that this charge deals with the presence of specific ranges of alcohol concentrations in the blood, evidence to show that the results yielded by the Breath Analysis Machine were inaccurate will serve as a defence.

Police did not comply with their legal obligations

The Road Traffic Act 1961 and the Road Traffic (Miscellaneous) Regulations 1999 outline a number of procedural conditions in relation to breath and blood analysis with which police must comply. In the event that they fail to comply with any of these requirements (e.g. refusing your request for a blood test), you may have a defence to this charge.

Suspended Sentence

If you find yourself in the unfavourable position of not only having been found guilty of an offence, but also having been sentenced to a term of imprisonment, we may be able to obtain a suspended sentence on your behalf under section 38 of the Criminal Law (Sentencing) Act 1988. If you receive a suspended sentence, you will be required to enter into a good behaviour bond and will also be required to comply with any other conditions the Court sees fit to impose.

Trifling Application or Application for Reduction of Demerit Points

Trifling application or any other proper cause: made immediately after conviction may have the effect of reducing the amount of demerit points. The same magistrate who convicted the defendant is required to hear the evidence and decide if the offence is trifling or whether any other proper cause for reduction exists Zanker v Hyndman.

Proper cause must relate to the offence itself. The fact that the person may suffer hardship from recording demerit points does not amount to proper cause Hepworth v Rowbottom.

It may be possible to reduce the penalty imposed, particularly the driver’s licence disqualification period, if we can prove that the offence was trifling.

The team at Caldicott Lawyers have successfully defended numerous D.U.I charges in South Australia.

The Prosecution must prove:

  1. You drove, or attempted to drive, a vehicle.
  2. You were under the influence of alcohol or a drug.
  3. You were incapable of exercising effective control of the vehicle.
  4. Your inability to control the vehicle was due to you being under the influence of alcohol.

It is possible for a person to be charged with driving under the influence even if police did not take a blood alcohol reading.

This is a summary offence and will be dealt with in the Magistrates Court of South Australia.

Cooper v SA Police (1993) 18 MVR 114: There exists a strict need to prove that incapacity to exercise effective control was caused by the influence of alcohol.

Come and see the knowledgeable lawyers at Caldicott Lawyers for assistance with your driving matter.

Our Results

Case Studies

1. Charge - Drink Driving Category 2
2. Blood Alcohol Concentration (BAC) of 0.126

Maximum Penalty: The maximum penalty the Court may impose varies depending on your blood alcohol reading and whether or not you have committed this offence before. If your blood alcohol reading was between 0.05 grams and 0.079 grams, the following penalties apply: First Offence $1,100 Automatic disqualification of not less than 3 months 4 incurred Second Offence $1,100 Automatic disqualification of not less than 6 months 4 incurred Third Offence $1,100 Automatic disqualification of not less than 9 months 4 incurred If your blood alcohol reading was between 0.08 grams and 0.149 grams, the following penalties apply: First Offence $1,300 Automatic disqualification of not less than 6 months 5 incurred Second Offence $1,600 Automatic disqualification of not less than 1 year 5 incurred Third Offence $2,200 Automatic disqualification of not less than 2 years 5 incurred If your blood alcohol reading was above 0.15 grams, the following penalties apply: First Offence $1,600 Automatic disqualification of not less than 1 year 6 incurred Second Offence $2,400 Automatic disqualification of not less than 3 years 6 incurred Third Offence $2,900 Automatic disqualification of not less than 3 years 6 incurred It may be possible to reduce these penalties if the offence was trifling.

Penalty Received: Fine $1100 Impound costs $874 Disqualified for 6 months

1. Charge – Drink Driving Category 3
2. Blood Alcohol Concentration (BAC) of 0.155

Maximum Penalty: The maximum penalty the Court may impose varies depending on your blood alcohol reading and whether or not you have committed this offence before. If your blood alcohol reading was between 0.05 grams and 0.079 grams, the following penalties apply: First Offence $1,100 Automatic disqualification of not less than 3 months 4 incurred Second Offence $1,100 Automatic disqualification of not less than 6 months 4 incurred Third Offence $1,100 Automatic disqualification of not less than 9 months 4 incurred If your blood alcohol reading was between 0.08 grams and 0.149 grams, the following penalties apply: First Offence $1,300 Automatic disqualification of not less than 6 months 5 incurred Second Offence $1,600 Automatic disqualification of not less than 1 year 5 incurred Third Offence $2,200 Automatic disqualification of not less than 2 years 5 incurred If your blood alcohol reading was above 0.15 grams, the following penalties apply: First Offence $1,600 Automatic disqualification of not less than 1 year 6 incurred Second Offence $2,400 Automatic disqualification of not less than 3 years 6 incurred Third Offence $2,900 Automatic disqualification of not less than 3 years 6 incurred It may be possible to reduce these penalties if the offence was trifling.

Penalty Received: Our client was found Not Guilty of Drink Driving.

1. Charge - Drink Driving Category 1 offence
2. Blood Alcohol Concentration (BAC) of 0.073

Maximum Penalty: The maximum penalty the Court may impose varies depending on your blood alcohol reading and whether or not you have committed this offence before. If your blood alcohol reading was between 0.05 grams and 0.079 grams, the following penalties apply: First Offence $1,100 Automatic disqualification of not less than 3 months 4 incurred Second Offence $1,100 Automatic disqualification of not less than 6 months 4 incurred Third Offence $1,100 Automatic disqualification of not less than 9 months 4 incurred If your blood alcohol reading was between 0.08 grams and 0.149 grams, the following penalties apply: First Offence $1,300 Automatic disqualification of not less than 6 months 5 incurred Second Offence $1,600 Automatic disqualification of not less than 1 year 5 incurred Third Offence $2,200 Automatic disqualification of not less than 2 years 5 incurred If your blood alcohol reading was above 0.15 grams, the following penalties apply: First Offence $1,600 Automatic disqualification of not less than 1 year 6 incurred Second Offence $2,400 Automatic disqualification of not less than 3 years 6 incurred Third Offence $2,900 Automatic disqualification of not less than 3 years 6 incurred It may be possible to reduce these penalties if the offence was trifling.

Penalty Received: Fine of $300, plus an impoundment fee of $894 Disqualified from driving for seven weeks and one day

1. Charge – Drink Driving - Category 3 offence
2. Blood Alcohol Concentration (BAC) of 0.187

Maximum Penalty: The maximum penalty the Court may impose varies depending on your blood alcohol reading and whether or not you have committed this offence before. If your blood alcohol reading was between 0.05 grams and 0.079 grams, the following penalties apply: First Offence $1,100 Automatic disqualification of not less than 3 months 4 incurred Second Offence $1,100 Automatic disqualification of not less than 6 months 4 incurred Third Offence $1,100 Automatic disqualification of not less than 9 months 4 incurred If your blood alcohol reading was between 0.08 grams and 0.149 grams, the following penalties apply: First Offence $1,300 Automatic disqualification of not less than 6 months 5 incurred Second Offence $1,600 Automatic disqualification of not less than 1 year 5 incurred Third Offence $2,200 Automatic disqualification of not less than 2 years 5 incurred If your blood alcohol reading was above 0.15 grams, the following penalties apply: First Offence $1,600 Automatic disqualification of not less than 1 year 6 incurred Second Offence $2,400 Automatic disqualification of not less than 3 years 6 incurred Third Offence $2,900 Automatic disqualification of not less than 3 years 6 incurred It may be possible to reduce these penalties if the offence was trifling.

Penalty Received: Fined $1100 Disqualified for 2 weeks

1. Charge - Drink Driving Category 2 offence
2. Blood Alcohol Concentration (BAC) of 0.12

Maximum Penalty: A fine of $1300 Minimum disqualification of 6 months

Penalty Received: Fine of $900 Disqualified for 7 months

Low level drink driving, namely 0.103.

Maximum Penalty: The maximum penalty the Court may impose varies depending on your blood alcohol reading and whether or not you have committed this offence before. If your blood alcohol reading was between 0.05 grams and 0.079 grams, the following penalties apply: First Offence $1,100 Automatic disqualification of not less than 3 months 4 incurred Second Offence $1,100 Automatic disqualification of not less than 6 months 4 incurred Third Offence $1,100 Automatic disqualification of not less than 9 months 4 incurred If your blood alcohol reading was between 0.08 grams and 0.149 grams, the following penalties apply: First Offence $1,300 Automatic disqualification of not less than 6 months 5 incurred Second Offence $1,600 Automatic disqualification of not less than 1 year 5 incurred Third Offence $2,200 Automatic disqualification of not less than 2 years 5 incurred If your blood alcohol reading was above 0.15 grams, the following penalties apply: First Offence $1,600 Automatic disqualification of not less than 1 year 6 incurred Second Offence $2,400 Automatic disqualification of not less than 3 years 6 incurred Third Offence $2,900 Automatic disqualification of not less than 3 years 6 incurred It may be possible to reduce these penalties if the offence was trifling.

Penalty Received:


Drive with a Prescribed Concentration of Alcohol (Drink Driving), namely a blood alcohol concentration of 0.22.

Maximum Penalty:

Penalty Received: Our client was convicted of the offence, and the minimum fine and loss of licence imposed, namely a fine of $900.00 and disqualification from driving for six months.

Drive with excess blood alcohol (Drink Driving), namely 0.159.

Maximum Penalty:

Penalty Received: The client was fined the sum of $1,000.00 and was disqualified for a period of 12 months backdated to when they lost their licence.

Driving with a prescribed concentration of alcohol, namely 0.082.

Maximum Penalty: The maximum penalty the Court may impose varies depending on your blood alcohol reading and whether or not you have committed this offence before. If your blood alcohol reading was between 0.05 grams and 0.079 grams, the following penalties apply: First Offence $1,100 Automatic disqualification of not less than 3 months 4 incurred Second Offence $1,100 Automatic disqualification of not less than 6 months 4 incurred Third Offence $1,100 Automatic disqualification of not less than 9 months 4 incurred If your blood alcohol reading was between 0.08 grams and 0.149 grams, the following penalties apply: First Offence $1,300 Automatic disqualification of not less than 6 months 5 incurred Second Offence $1,600 Automatic disqualification of not less than 1 year 5 incurred Third Offence $2,200 Automatic disqualification of not less than 2 years 5 incurred If your blood alcohol reading was above 0.15 grams, the following penalties apply: First Offence $1,600 Automatic disqualification of not less than 1 year 6 incurred Second Offence $2,400 Automatic disqualification of not less than 3 years 6 incurred Third Offence $2,900 Automatic disqualification of not less than 3 years 6 incurred It may be possible to reduce these penalties if the offence was trifling.

Penalty Received: The matter was resolved by way of entering a guilty plea to one count of PCA and submissions were made on the client's behalf. James Caldicott made submissions on the client's behalf and His Honour indicated from the outset that he would be imposing the minimum penalty of six months disqualification. The Magistrate convicted the client of the offence and disqualified the client for a further two months, fined them the sum of $900.00 for the offence and also noted that there was a $1,043.30 car impounding fee. There was also Court costs, prosecution fee and victim of crime levy to be paid associated with this matter.

Failing to comply with reasonable direction, and submit to a breath analysis.

Maximum Penalty: The maximum penalty the Court may impose varies depending on your blood alcohol reading and whether or not you have committed this offence before. If your blood alcohol reading was between 0.05 grams and 0.079 grams, the following penalties apply: First Offence $1,100 Automatic disqualification of not less than 3 months 4 incurred Second Offence $1,100 Automatic disqualification of not less than 6 months 4 incurred Third Offence $1,100 Automatic disqualification of not less than 9 months 4 incurred If your blood alcohol reading was between 0.08 grams and 0.149 grams, the following penalties apply: First Offence $1,300 Automatic disqualification of not less than 6 months 5 incurred Second Offence $1,600 Automatic disqualification of not less than 1 year 5 incurred Third Offence $2,200 Automatic disqualification of not less than 2 years 5 incurred If your blood alcohol reading was above 0.15 grams, the following penalties apply: First Offence $1,600 Automatic disqualification of not less than 1 year 6 incurred Second Offence $2,400 Automatic disqualification of not less than 3 years 6 incurred Third Offence $2,900 Automatic disqualification of not less than 3 years 6 incurred It may be possible to reduce these penalties if the offence was trifling.

Penalty Received: The magistrate withdrew the matter, on a no costs basis.

Drive with excess blood alcohol (Drink Driving), already having had a conviciton for drink driving in 2013.

Maximum Penalty:

Penalty Received: The client was given a two year loss of licence and a fine of $3,153.30 inclusive of impound fee.


Drive with a Prescribed Concentration of Alcohol, namely 0.097.

Maximum Penalty:

Penalty Received: Upon entering a plea of guilty, our client received a conviction, a minimum fine of $900.00 and a licence disqualification of a further five months and five days.

Driving with a prescribed concentration of alcohol - second offence.

Maximum Penalty:

Penalty Received: This was our client's second offence for drink driving. This is a contumacious offence. Our client received a two month and 24 day term of imprisonment suspended upon him entering into a good behaviour bond in the sum of $2,000 for a period of two years and six months and to be under supervision for two years. Our client was fined $1,600 together with court costs. Our client was extremely happy considering he was facing gaol time.