How to Challenge DUI Charges in South Australia
DUI / Driving under the influence of a serious driving offence in South Australia and attracts severe penalties including substantial fines, demerit points, and even terms of imprisonment. Regrettably, it is also an offence that police sometimes charge incorrectly, as in our case study below. Despite the gravity of these allegations, we successfully negotiated with the prosecution, resulting in both charges being withdrawn. Initially, our client was initially charged with:
- Driving Under the Influence of intoxicating liquor – section 47 of the Road Traffic Act 1961 (SA) (RTA); and
- Failing to Provide a Breath Sample to an authorised operator – section 47E of the RTA.
Background
Police alleged that our client’s vehicle was weaving in its lane, that the client appeared sluggish and unsteady at 5:00 am, and that there were further indications of intoxication once the client was in custody. Our client, however, insisted they had done nothing wrong, requested a blood test, and believed the police also incorrectly advised them of their rights. After the arrest, our client served a 12 month immediate loss of licence from the date of the alleged offence. The matter proceeded to the pre-trial stage in the Magistrates Court
Upon examining the record of interview and the body-worn camera footage (BWV), we identified several irregularities in how the police conducted the breath test procedure and in the advice provided to our client. The alleged driving facts did not establish beyond a reasonable doubt that the client was “so much under the influence” as to lose effective control of the vehicle and could not support a DUI charge.
Police Allegations
Police relied on the following “evidence” to establish that our client was driving so much under the influence” of alcohol or drugs as to be incapable of exercising effective control of their vehicle:
- Referring to uncharged offending – such as the speed limit being 60km/h on the relevant stretch of road, yet inferring our client exceeded the limit by 15-30km/h (despite not being charged).
- Body worn video footage showing our client walking back in police escort was tilted or otherwise on an angle which gave the impressions our client was somehow unsteady on his feet.
- In the same video footage, our client was handed police issued documents which he was asked to read while walking resulting in a slight misstep.
Withdrawal of Charges
1. Inaccurate Prescribed Oral Advice
- Incorrect Statement About Blood Test Costs – The police operator stated that a blood test would be at our client’s own expense, rather than clarifying it would be at government expense, as required. This misstatement is significant; correct and precise wording of prescribed oral advice is crucial to ensure an accused individual understands their rights.
- Misleading Disqualification Penalties – The operator incorrectly informed our client that they “could lose your licence for up to twelve months,” suggesting a discretionary period. However, for this offence, legislation prescribes a minimum disqualification of 12 months. Furthermore, they stated that the client “could be fined or lose your licence,” which also misrepresents the fact that licence disqualification is mandatory alongside any fine.
- Lloyd v Police [2004] SASC 278, police officers must accurately convey the substance of the breath test procedure and the available rights. Any material deviation can invalidate the procedure and open the door for the court to exercise its discretion to exclude evidence.
2. Denial of the Right to Request a Blood Test
- Unequivocal Request for a Blood Test – Under Tann v Schild (1990) 54 SASR 523, once an individual makes any affirmative indication they want a blood test, police must respect that request. Instead, the operator continued re-questioning our client multiple times, rather than providing a blood test kit or arranging immediate medical examination. Once a person indicates they want a blood test, police must halt further lines of questioning about the breath test and facilitate a blood sample.
- Repeated Questioning & Failure to Provide Blood Test Kit – Despite our client’s (numerous) affirmative response, the operator continued to ask “Do you want a blood test?” multiple times in rapid succession. This arguably denied our client the prompt and unambiguous opportunity to obtain a blood sample, thereby undermining their only practical avenue to challenge any subsequent reading.
- Lack of Procedural Fairness – As established in Athanasiadis v Police [2019] SASC 176, an officer’s sole aim in reading the script should not be to expedite charges but to help the accused understand their legal options. In this case, the operator read the script quickly, without pauses, and did not adequately clarify key points—undermining procedural fairness. In that case, Justice Peek noted:
“There was clearly no intention to do any more than rapidly follow a script with the sole object of being able to assert, at the end of it, that he had read out that script… No doubt it was towards the end of the shift and Bell (the operator) may have been tired. However, he was there to assist members of the public and not just to prosecute them. I consider that Bell should have made some effort to assist… to understand his option to request a blood test (and the ramifications of not doing so) rather than just ignoring the cri de coeur as he did. In view of the fact that the charge was correctly withdrawn prior to trial I will say no more“.
- Discretion to Exclude Evidence – Because the mandatory oral advice was incorrectly conveyed, any eventual breath reading or “failure” could be subject to exclusion under the unfairness discretion. If the defendant is misinformed or denied a fair chance to secure a blood test, courts may consider setting aside crucial evidence. The discretionary exclusions may apply where breath analysis’ are lawfully obtained but later conduct deprives the accused of challenging results by using a blood test. For example, where wrong advice is given that results in a person not having their blood analysed. The same discretion may apply to improper conduct after a reading is obtained resulting in police relying on a reading without the challenge of a blood test.
4. DUI / Driving Under the Influence Observations
- Unreliable Observations – The police alleged that the client’s eyes were bloodshot, that speech was slurred, and that the vehicle wove within lanes. However, no supporting charges (e.g., speeding or driving without due care) were laid—raising questions about the reliability of these observations. Moreover, it was approximately 5:00 am, and our client had been working on their feet for over 10 hours. Fatigue and irritants could account for some of these signs, such as bloodshot eyes. We argued these observations were vague, non-specific, and potentially explained by fatigue, late-night work conditions, or unrelated factors.
- Minimal Risk Driving – Our client was not charged with speeding, improper lane changes, or driving without due care. Estimates of going 75–90 km/h in a 60 km/h zone were never tested by radar or official speed checks, further weakening the credibility of the alleged “unsteady driving.”
- Insufficient Evidence of Actual Impairment – Under section 47 of the Act, the prosecution must prove beyond a reasonable doubt that the driver was “so much under the influence” as to be incapable of exercising effective control. In Police v Noble [2014] SASC 63, the Supreme Court reiterated that general observations like “slurred speech”, “slight swaying” and even the odour of alcohol often do not rise to the level of proving incapacitated control.
Outcome
After reviewing the evidence and our submissions regarding the procedural and evidentiary issues, the prosecution correctly withdrew both charges against our client:
- Failing to Provide a Breath Sample was withdrawn on the basis that the police provided incorrect and confusing instructions, thus frustrating the legislative intent of allowing a blood test on request; and
- Driving Under the Influence was withdrawn because the evidence of impairment did not satisfy the legal threshold required for DUI.
Consequently, our client was able to lift the disqualification and avoid a criminal conviction for these charges. This outcome underscores the importance of proper police procedure and the vital role of experienced traffic lawyers in protecting the rights of those facing serious driving offences.
How Talon Legal Can Help
Our client’s experience illustrates that DUI charges are not always valid, especially if police fail to follow prescribed procedures or incorrectly convey your rights. If you have concerns about how your breath or blood test was administered—or if you believe observations of your driving were exaggerated
At Talon Legal, we take pride in our thorough approach and in-depth knowledge of South Australia’s traffic laws. We believe in protecting our clients’ rights at every stage of the legal process. If you or someone you know is facing a DUI or any other traffic-related charge, contact us for free 30 minute consultation to review your case.
