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  • Writer's pictureJarrod Carter

Legal Injustice: Drink Driving in Your Living Room

Did you know that in Western Australia you can be charged for drink driving, even if you have only had alcohol after going home and sitting on your couch? Sounds ridiculous, but it is entirely true. A recent client was at home by himself watching sport on a Saturday afternoon and drinking bourbon and coke. He was trying to ease his nerves after a traumatic experience. Two police officers knocked on his door and were warmly welcomed inside by my client.

With drink still in hand, the police advised him that they needed to do a breathalyzer test. My client was incredulous. He had spent the last thirty minutes knocking back strong drinks. Half the bottle of bourbon was gone. Of course, he was perfectly entitled to drink as much as he wanted to in his own home. However, he blew over the limit and was thereafter escorted to the police station to be tested by the more accurate breathalyzer. He was charged with Drink Driving and that’s how he ended up in my office.

So what is missing from this story? It sounds like a nightmare from a parallel dimension where the law is insane. An hour before the police knocked on my client’s door he had been driving home with a bag of KFC. He was stone cold sober. As he drove through a round-about, a cat ran out in front of his car. He swerved to save the cat, but hit a concrete wall. No one was hurt and the only damage was to the plastic bumper of his car. He didn’t know what to do so he rang the police to report the accident. After he got off the phone, he went straight home and poured himself a big drink, and then another.

There was absolutely no evidence to suggest that my client had been drinking at the time of the minor accident. In fact, he was the one who reported it to the police. However, the police still breathalyzed him an hour after the accident. You might be thinking that drink driving is a criminal charge, so how could the police prove beyond a reasonable doubt that our client had been drinking at the time of the accident? Surely the delay between the driving and the breathalyzer creates a reasonable doubt. It certainly should, but sadly it doesn’t. The law has been drafted so that with this criminal charge, you are guilty until proven innocent.

My client was charged under section 63(1)(a) of the Road Traffic Act (“RTA”), which states: A person who drives or attempts to drive a motor vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle commits an offence.

Every driver knows the basic gist of the prohibition on drink driving. However, not many people know about the shocking legislation enacted in 2019 designed to flip the evidentiary burden upside down and force people to prove their innocence. Section 71(2) of the RTA 1974 was inserted by legislation in 2019, (the Road Traffic Amendment (Blood Alcohol Content) Act 2019).

Section 71(2) includes the following: for an offence against section 63 (which is drink driving), the person charged is, in the absence of proof to the contrary, taken to have a particular blood alcohol content at the time of the driving if it is proved that the person had the blood alcohol content at any time within 4 hours after the driving.

No you are not going crazy. It really does say that. This means that if you are over the limit, but it has been 3.5 hours since you last drove, unless you can prove otherwise, you are deemed to have been drunk at the time of driving. How could you possibly prove that you weren’t drinking at the time? It is very difficult to prove that something didn’t happen unless you are very prepared. Are we expected to film ourselves at every minute of the day to show the absence of alcohol? Or should all cars be fitted with a breathalyzer so we have evidence of our perpetual sobriety behind the wheel? What about a computer chip in our bodies that uploads our blood alcohol level to the government every 12 seconds?

Section 66(1a) of the RTA states that if a police officer has reasonable grounds to believe a vehicle was in an accident where there was property damage (like a dented bumper), they may request a breath sample from the driver. Section 71(2), as referred to above, gives the police the power to do this up to 4 hours after the accident took place.

You might wonder, why would the police go to his house just to try to catch him out drinking after he was the one who reported the accident? Sadly, it is because he did the right thing by calling the police to report the accident. Under section 56(4) of the RTA, If a vehicle driven by a person (the driver) is involved in an incident in which any property is damaged the driver must report the incident forthwith to the officer in charge of a police station. My client told the police his car was damaged in an accident where he was driving. So they looked up his address, went to his house, and “caught him” drinking. He didn’t know that it is essentially illegal to consume alcohol within 4 hours of an accident.

You might wonder, how do you prove that you were not over the limit at the time of the accident if you were drunk two hours later? The main way is to lead evidence that it was possible for you to have absorbed the amount of alcohol detected in the time frame. For example, you wouldn’t be able to absorb enough alcohol to be four times over the legal limit within 10 minutes of the accident. The body can’t absorb alcohol that quickly. While this doesn’t prove your sobriety, it casts a doubt that many magistrates’ would consider reasonable. Additionally, it helps if you don’t do anything too sketchy around the time of the accident like abandoning your car and running off into the bushes.

Section 66 and 71(2) of the RTA give the police extraordinary power which could easily be abused. Section 66 stipulates that: A police officer may require the driver of a motor vehicle, or any person the police officer has reasonable grounds to believe was the driver or person in charge of a motor vehicle, to provide a sample of the person’s breath. And Section 71(2) states that a test taken within 4 hours of driving is considered to be the same taken by the side of the road. This means that the police could watch people leave the bottle shop drive-thru on a Friday night, and then go to their house 3 hours later and give them a breathalyzer test. The police would have evidence of that person driving by way of dashcam footage, and the legal power to wait until the carton of beer was nearly gone before doing the test.

The reason why this law exists with a reverse burden of proof is because many drunk drivers crash their car and then run away from the scene of the accident. While we can understand the appeal of a law trying to police drink driving, we must be aware of the cost to society. Any law that removes the presumption of innocence and puts the evidentiary burden on the accused is repugnant and must be repealed.

It seems that if you have been in a minor accident, and you do your duty by reporting it to the police, you really can’t drink alcohol for the four hours after the accident. But if you really need that drink to settle your nerves, don’t go home and drink. You might get a knock on the door. Take an Uber to the pub and don’t go home for at least four hours.

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