Driving Under The Influence (DUI) Lawyers in Adelaide

DUI Lawyers Adelaide

Driving under the influence (DUI) is a serious drink driving offence in South Australia and is often confused with drink driving or drug driving. However, it is not the same as driving with a prescribed concentration of alcohol, and you may be convicted of DUI even if your blood alcohol level is less than the prescribed concentration.

If you are charged with DUI, you could be facing life changing penalties and we may be able to reduce possible penalties or to defend the charge entirely.

Book a free 30 minute consultation to get the best outcome. We have a proven track record of getting DUI charges withdrawn.

What is Driving Under The Influence?

Pursuant to section 47 of the Road Traffic Act 1961 (SA) a person must not:

• drive a vehicle; or
• attempt to put a vehicle in motion while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle.

DUI targets drivers (or those attempting to drive) who are “so much under the influence” of alcohol or drugs as to be incapable of exercising effective control of their vehicle. 

Incapable of Exercising Effective Control

DUI is a strict liability offence. It is not a defence to claim you were unaware of your own intoxication level. Any appreciable loss or impairment of mental or physical faculties because of intoxication may suffice to establish the driver was not in effective control. This has several implications:

• No Need for Erratic Driving – Courts have consistently held that the absence of abnormal driving does not automatically defeat a DUI charge (Samuels v McKenzie [1969] SASR 83).
• Drawing Inferences – A driver’s condition at a later time can often be used to infer their state while driving (Evans v Sparrow (1973) 6 SASR 519).
• Alcohol or Drug Influence – This provision covers both alcohol and any “drug”, broadly interpreted by case law (Armstrong v Clark [1957] 2 QB 391; August v Fingleton [1964] SASR 22).

Proof of the fact that owing to the influence of intoxicating liquor or a drug, any mental or physical faculty of the defendant was lost or was appreciably impaired is one way that the prosecution may prove the required circumstance, but it is not the only way.

DUI Penalty in SA

A conviction for DUI may have severe consequences from substantial fines, licence disqualification, demerit points, vehicle impounding and possible imprisonment, especially for repeat offenders in aggravated circumstances. 

Book a free 30 minute consultation with our traffic lawyers to get the best outcome.

DUI Disqualification

Beyond fines and possible imprisonment, courts must also disqualify drivers convicted under s 47(1) (involving a motor vehicle). The minimum disqualification periods are:

• First offence – Minimum 12 month disqualification (court may not reduce below 1 month unless the offence is proved to be “trifling” on oath).
• Subsequent offence – Minimum 3 years disqualification.

(A “subsequent offence” includes any prior drink driving or drug driving offence within the “prescribed period” of 5 years.)

Demerit Points for DUI

The court must also impose a minimum of six (6) demerit points unless the offence is found “trifling” or if other “proper cause” exists.

Depending on the category of driver’s licence, this may result in a further demerit point disqualification or an automatic breach of provisional licence conditions (such as for a provisional, probationary or learner driver). These periods of disqualification commence after a court ordered driving disqualification.

Mandatory Alcohol Interlock Scheme

Licence conditions also apply including mandatory alcohol interlock conditions where a previous alcohol offence (other than a Category 1 offence with a BAC less than .08 or driving under the influence) exists within the last 5 years.

Offenders may also be subject to a mandatory alcohol interlock condition under sections 81E–81H of the Motor Vehicles Act 1959 (SA). This scheme requires the installation of an interlock device at the driver’s expense before fully regaining driving privileges.

Serious Drink Driving Offences

The scheme imposes conditions if you are charged with a serious drink driving offence. These generally include:

1. Driving under the influence (DUI).
2. Refusing a breath test.
3. Refusing a blood test.
4. Drink driving (PCA) Category 3 (0.15 or more) or Category 2 (0.08 – 0.14) with previous convictions in the last five (5) years.

Reapply for Licence After DUI

If you were disqualified from driving due to a serious drink driving offence, you must reapply for your licence and have an alcohol interlock device installed in your vehicle before you can start driving again. Otherwise, you may be charged for driving unauthorised.

If you are caught driving after being disqualified by the court, you will face imprisonment, even for a first offence. You may also face a term of imprisonment if you do not renew your licence after a DUI disqualification by Driving Unlicensed.

Will I Lose My Licence for DUI?

If you are convicted of DUI in the Magistrates court, there is very little that may be done to reduce the disqualification period. Unlike other states, there is no such thing as a “special work licence” or a restricted licence in South Australia.

Will I go to Jail for DUI?

While imprisonment is an available penalty (particularly for high intoxication levels, dangerous driving, or repeat offences), courts typically regard imprisonment as a last resort (White v Police (2000) 76 SASR 430).

Trifling Offences

Courts have a narrow discretion to reduce the mandatory minimum disqualification period for DUI offences below the minimum.

This will only occur if the offence is found “trifling” and is reserved for unusual or exceptional cases. For example, driving a very short  distance or if an emergency exists, such as in:

• Campbell v Fuss (1991) 55 SASR 355 – The appellant rolled a car a short distance without starting the engine and posed negligible risk;
• Police v M [2004] 281 – Driving to escape after being attacked by a gang of youths, smashing the back window;
• Police v Jozinovic [2004] SASC 64 – Driving only a few metres under pressing personal circumstances;
• Police v Ludlow [2008] SASC 43 – (not trifling) driving a short distance failed because driving conditions suggested risk or the lack of a real emergency;
• Police v Head [2013] SASC 185 – (not trifling) driving 3.5km on back roads but having to pass through several intersections; or
• Jia v Police [2015] 140 – (not trifling) inadequately driving 100 metres down a city street without any pressing need and causing a collision.

DUI With a Child Present

If a child under 16 years is present in the vehicle at the time of the offence, the penalties mirror those above but become a separate, more serious offence.

Charged With DUI & Drink Driving

Where a driver is charged with DUI and PCA (driving with a prescribed concentration of alcohol), often referred to as “exceeding the limit”, the Supreme Court in Police v Jozinovic [2004] SASC 64 explained the proper procedure:

1. Determine the DUI Charge First – If the prosecution intends to proceed with the DUI charge, the court should ordinarily deal with it before considering the PCA charge. In Jozinovic, the unrepresented defendant pleaded guilty to both offences, which the Supreme Court noted was procedurally irregular.
2. Dismissal or Withdrawal of the PCA Charge – Once the court has dealt with DUI—particularly if the defendant is convicted—prosecutors typically do not pursue the PCA offence further. Continuing with both can risk “double punishment” for essentially the same set of driving facts.
3. Exceptionally Rare Circumstances – On rare occasions, the prosecution may still press both charges, but Jozinovic cautions that such a course is unusual and should only occur when clearly justified. The court emphasised that it is improper to conflate both charges without carefully informing the defendant (especially if self-represented) of the usual practice to finalise DUI first.

If you face both DUI and PCA for the same act of driving, expect the court to prioritise the DUI charge. If that matter concludes with a conviction (or guilty plea) to DUI, the PCA count is often dismissed (or withdrawn) to avoid duplicate penalties.

Conversely, if the prosecution proceeds on PCA alone, the DUI might be set aside. We will advise you on the best strategy depending on the specific circumstances (for example, your blood alcohol reading, police observations, or any “trifling” arguments).

Evidence of Intoxication

A high blood alcohol reading does not, by itself, without expert evidence, prove one’s faculties were appreciably impaired (Praniess v Police [2011] SASCFC 22). Typically, the prosecution or defence may introduce evidence, such as:

• Police Observations – Officers may testify to slurred speech, bloodshot eyes, unsteady gait, or an inability to follow instructions. Such testimony is admissible if it does not stray into expert opinion territory (Warming v O’Sullivan [1962] SASR 287).
• Refusing Breathalyser – Even if no breath analysis is relied upon, the prosecution can still succeed on DUI charges through witness evidence (e.g., a police officer’s observations).
• Defence Evidence – Defendants may challenge claims of impairment, introduce alternative explanations (e.g., fatigue, medical conditions), or highlight normal driving conduct.

There is no constraint on the evidence that a defendant may adduce relevant to the question of whether he or she was under the influence of intoxicating liquor or drugs or was incapable of exercising effective control of the vehicle he or she was driving or attempting to drive.

What The Court Considers

When sentencing for DUI, courts consider:

1. Degree of Intoxication – A most important, but not necessarily decisive, factor is the degree of intoxication particularly as inferred from the level of consumption rather than the outward signs;
2. Driving Manner – Bad driving (weaving, near-misses, collisions) can also be an aggravating factor, but it may be better dealt with by separate charges such as driving without due care;
3. Prior Record – Repeat offences result in longer periods of disqualification, increased fines and maximum terms of imprisonment;
4. Context – Urgent or emergency situations sometimes mitigate, while child presence worsens the outlook.

Book a Free 30 Minute Consultation

While imprisonment is reserved for the repeat offences or those committed in aggravating circumstances, the consequences, both financial and personal, can be substantial. Book a free 30 minute consultation to get the best defence and secure the best possible outcome.

Our team of expert traffic lawyers in Adelaide can assess the supposed evidence of impairment, whether a defence applies, or if the police made any errors, or penalty reductions such as a “trifling” application for DUI.