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  • Ben Dickens

Presumption of Guilt for Drink Driving Charges

Updated: Apr 27, 2022

The Road Traffic Act 1974 (WA) (the RTA) is the legislation that sets out the rules on how we share and use the road. Naturally, matters involving driving under the influence of alcohol fall under the authority of the RTA.

In the State of Western Australia, an individual charged with a criminal offence is deemed innocent until proven guilty in a court of law. To be found guilty, it must be deemed beyond a reasonable doubt that an individual is guilty of a criminal offence. An exception to this general rule is charges relating to driving under the influence of alcohol.

Of particular concern are the evidentiary provisions set out in ss70 & 71 of the RTA. Sections 70 and 71 of the RTA allows for Police Officers to breath test you within 4 hours after the alleged use or management of a motor vehicle, then you are subject to being charged for driving under the influence under the RTA.

What makes matters worse is that the RTA provides under the same sections that should Police require a blood or urine sample from an accused, that there is a window of 12 hours between the collection of said sample and the alleged use or management of a motor vehicle for it to be admissible as evidence in a Western Australian Court.

The problem with these evidentiary provisions is that it provides Police with an enormous window to charge an individual with an offence that they might not have actually committed.

For example, you’re involved in a traffic collision and provide Police with your details should they require a statement. You return home and have a drink to calm your nerves after being involved in a traumatic event. Police arrive a short time later requesting a statement or to question you further and during that process, request a breath sample for analysis, picking up on the alcohol you had just consumed.

Under the RTA, that breath test is admissible as evidence and you would be charged with Driving Under the Influence, even if you hadn’t had a sip of alcohol before returning home.

These provisions provide for far too generous an amount of time between an alleged offence and testing. The presumption of guilt that follows goes against one of the cornerstones of our legal system, being the presumption of innocence. Further, these provisions circumvent the onus of the prosecution to prove an individual’s guilt beyond a reasonable doubt as the collection of a sample within the specified timeframe does not recognise that an accused may consume alcohol after the purported incident.

If the contents of this article apply to your current situation, please do not hesitate to contact one of our criminal lawyers on (08) 9408 5212 and speak to a lawyer regarding your rights.

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

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