PCA charges are rarely defended. Significant numbers of accused persons plead guilty without any thought given as to whether or not there is a defense available. In some these cases the charge should be challenged.

Honest and reasonable mistake of fact.

The onus of proof in drink driving charges always rests on the Prosecution (or Police). One such essential element the police have to prove beyond reasonable doubt is an absence of honest and reasonable mistake.

A classic application of this doctrine may be in the “morning after” cases. These cases may be well worth running on a defended basis, especially when there was a low reading.

Another good candidate for this defense is where an accused person has been scrupulous to count their drinks and ensure that they stayed within the familiar guideline of “two standard drinks in the first hour and one every hour thereafter”, and then before driving waited some time to allow a further margin for abundant caution. Again, in that situation one would have thought that the accused was operating under and honest and reasonable belief that he/she was under the limit. There is a whole range of factors which an experienced lawyer can touch upon which, if applicable, may explain why the accused held the mistaken belief he/she was under the limit.

Asleep or Unconscious at the Wheel.

The High Court of Australia has held that a person cannot be said to be driving while unconscious at the wheel. (Known as the Jiminez defense). In a joint judgment the majority of judges said:

“If the applicant did fall asleep, even momentarily, it is clear that while he was asleep his actions were not conscious or voluntary (an act committed while unconscious is necessarily involuntary) and he could not be criminally responsible for driving the car in a manner dangerous to the public. The offence of culpable driving, in this respect, no different to any other offence and requires the driving, which is part of the offence, to be conscious and voluntary act”

The act of “driving” is an essential element of PCA offences. The Jiminez defense outlined above is fully applicable to PCA offences. In this case Mr. Jiminez was found by passers by slumped over the wheel of his car. He was asleep, the engine running, his car was in gear and resting against a parked car with which it had obviously collided. After being woken up, he was subjected to a breath analysis and returned a reading in the high range. He was charged with high range PCA.

The accused entered a plea of not guilty. He was acquitted because it could not be said he was driving whilst unconscious. Therefore, since driving is an essential element of a PCA offence, he could not have committed the offence while asleep. While it was clear that the client had driven to the site of the accident at some earlier time, there was no way to ascertain when that was. This meant that the prosecution could not prove what his blood alcohol concentration would have been at the time, nor could they prove that the two-hour rule had been complied with. (The breath analysis must be taken within two hours of driving)

The Home safe rule.

The law provides that:

“A police officer cannot require a person to submit to a test, analysis or assessment, or to provide a sample……… at that persons home.”

If the demand for a breath test or assessment is made at a person’s home then any such demand or test is illegal. It may also be a complete defense to the charge of failing to undergo a breath analysis.

Any arrest which took place at a persons home for failure to comply would be illegal. Any test taken after arrest would be illegal and can not be used against the accused in any subsequent court hearing. There are whole ranges of cases, which assist in determining what constitutes a persons “home”.

Robert G. Mulley, Solicitor Cowra