Mid Range Drink Driving Charge Withdrawn
Prosecution discontinued a mid-range drink driving (PCA) matter before the hearing where it could not prove the prescribed oral advice and written notice required for the evidentiary presumption under the Road Traffic Act 1961 (SA) and the Road Traffic (Miscellaneous) Regulations 2014 (SA).
Matter Snapshot
- Jurisdiction: Adelaide Magistrates Court (traffic list).
- Charge: Driving With a Prescribed Concentration of Alcohol (PCA) – mid-range reading recorded by breath analysing instrument.
- Status: Discontinued before hearing.
- Key issue: Prosecution could not prove that the prescribed oral advice and written notice were given in accordance with the Act and Regulations
- Outcome: No conviction and no licence disqualification arising from this charge; significant professional and overseas regulatory risks averted.
Background
The defendant returned a breath analysis of approximately 0.08 BAC following a roadside screening and subsequent breathalyser analysis. It was a first offence. The alleged driving occurred in suburban Adelaide at night. The matter was listed for a defended hearing.
From the outset, Talon Legal focused on statutory compliance with the PCA regime rather than disputing the instrument’s calibration. In particular, the defence tested whether the prosecution could establish the procedural prerequisites that enliven the evidentiary presumption attaching to a breath analysis reading.
The prosecution was unable to after losing the body worn video footage, written notice and sought to rely on an affidavit that was sworn almost 5 months after the offence occurred.
Legislative Framework
1) The evidentiary presumption and section 47K
In proceedings for a drink driving offence, the Court may receive evidence of the concentration of alcohol indicated by an approved breath analysing instrument operated by an authorised officer.
Where the requirements and procedures in relation to the instrument and analysis under the Act have been complied with, it is presumed (absent proof to the contrary) that the indicated concentration was present at the time of the analysis and throughout the preceding period of three hours. (Section 47K).
2) Prescribed oral advice and written notice
The Act is supplemented by the Road Traffic (Miscellaneous) Regulations 2014 (SA), which prescribe the exact oral advice and the written notice that must be given to a driver upon recording a positive breath analysis. See Schedule 1, Form 4: “Oral advice and written notice on recording of positive breath analysis reading”.
The prescribed advice includes (among other matters) the reading recorded, the right to obtain a blood test, and the effect of that right on the evidentiary presumptions. The Regulations also prescribe the written notice that must be handed to the driver. Proof of compliance is a prosecution responsibility.
3) Earlier procedural steps
Related provisions governing preliminary breath testing, the requirement to submit to analysis, and associated advice appear in ss 47E–47I of the Road Traffic Act 1961 (SA). The compliance chain matters: if a required step (including prescribed advice) is not proved, the prosecution may not enjoy the presumption that otherwise carries the reading. (Primary source: legislation.sa.gov.au;
AustLII – Road Traffic Act (SA).)
Evidence Difficulties Raised
- Body-worn video unavailable: The prosecution informed the Court that body-worn camera footage was unavailable due to deletion. An initial disc disclosure contained footage of an unrelated accused.
- Delayed affidavit: The officer’s affidavit addressing the giving of advice was prepared months after the event. It did not annex a contemporaneous record of the words used or the written notice allegedly provided.
- No corroboration of prescribed wording: In the absence of body-worn video or contemporaneous documentation, the prosecution could not demonstrate that the prescribed oral advice and the prescribed written notice (as per Schedule 1, Form 4) were in fact provided.
Talon Legal made it clear that the defence would put the prosecution to strict proof of each procedural requirement that enlivens the s 47K presumption.
Negotiation Posture
The defence indicated that, subject to compliance being proved, the case would proceed to hearing. The prosecution ultimately elected to discontinue the PCA charge before hearing.
Outcome
- PCA charge discontinued prior to hearing.
- No conviction recorded on this charge; no PCA-related disqualification imposed.
- Collateral risks avoided, including significant professional disciplinary proceedings in an overseas jurisdiction.
Why This Approach Succeeded
- Correct legal issue: We focused the Court’s attention on the prosecution’s obligation to prove that the prescribed advice and notice were given, not merely that “some advice” was given.
- Evidentiary discipline: The defence strategy required contemporaneous corroboration of the prescribed words and written notice.
- Proportional resolution: By signalling readiness to litigate procedure while also offering a practical alternative, the defence gave the prosecution a principled off-ramp.
Frequently Asked Questions
Is body-worn video mandatory to prove a PCA charge?
No. The Road Traffic Act 1961 (SA) does not require body-worn video. However, where the prosecution relies on the prescribed oral advice and written notice to enliven the s 47K presumption, body-worn video and contemporaneous documents often provide decisive corroboration. Absent such proof, the prosecution may face difficulty establishing compliance. (Sources: Act; Regulations, Sch 1 Form 4.)
What is the “prescribed oral advice” and “written notice”?
The Regulations prescribe the exact words and the written notice that must be provided when a positive breath analysis is recorded. This includes the reading, rights concerning a blood test, and consequences. Proof that the prescribed advice and notice were given is a prosecution responsibility. (Source: Road Traffic (Miscellaneous) Regulations 2014 (SA), Schedule 1, Form 4.)
Does a failure to prove the prescribed advice automatically defeat the case?
Not automatically. Each case turns on its proof. Where compliance is not proved, the prosecution may be unable to rely upon the statutory presumption under s 47K as to the reading over the relevant time window. The downstream effect depends on the remaining evidence. (Source: Road Traffic Act 1961 (SA), s 47K.)
Is a borderline 0.08 BAC always “mid-range drink driving” in SA?
Categories and drink driving penalties are set by the Act and Regulations and depend on licence class and circumstances. “Borderline” breathalyser or blood alcohol readings frequently cause disputes about proof and procedure rather than charge categories alone. Always obtain advice from a expert traffic lawyers about your licence and circumstances.
Professional Note
This outcome does not suggest that body-worn video is required for a successful drink driving charge and conviction. It illustrates that when the prosecution cannot prove each procedural precondition, particularly the prescribed oral advice and prescribed written notice, the evidentiary basis of the breath analysis changes.
Careful case analysis, targeted and persistent disclosure requests and disciplined objections can be decisive. Drink driving cases are complex and rely on the presumption that certain scientific instruments are accurate and that the correct procedures were followed.
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If you have been charged with drink driving or DUI in South Australia, early advice is critical. Talon Legal can assess the compliance chain, request the right disclosure, and protect your position at every step.
Outcome at a Glance
- PCA charge discontinued prior to hearing
- Prescribed oral advice/written notice not proved
- No conviction or PCA-related disqualification
