{"id":26083,"date":"2017-01-09T12:32:11","date_gmt":"2017-01-09T12:32:11","guid":{"rendered":"https:\/\/rmolaw.com.au\/passing-the-post-silly-season-test\/"},"modified":"2025-02-24T05:18:57","modified_gmt":"2025-02-24T05:18:57","slug":"passing-the-post-silly-season-test","status":"publish","type":"post","link":"https:\/\/rmolaw.com.au\/zh\/passing-the-post-silly-season-test\/","title":{"rendered":"Passing The Post-silly Season Test"},"content":{"rendered":"

As the silly season draws to a close quite a lot of people may be regretting having said something at the Christmas party or committing some other indiscretion as a result of imbibing the spirits of Christmas. Quite a few driver\u2019s will be left with a more serious problem; a drink driving<\/a>\u00a0charge.<\/p>\n

For many law abiding citizens the one brush they will ever have with the law is a charge of driving with a blood alcohol concentration above the legal limit. That \u201cbrush\u201d might well be very confronting. If you have never been arrested and fingerprinted and put into a watch-house cell before you will probably find the whole experience very intimidating.\u00a0 It\u2019s the one offence that doctors, lawyers, teachers and other professionals are most likely to find themselves in front of a Magistrate over.<\/p>\n

This article provides tips on how to avoid getting into this sort of trouble and what to do if you find yourself blowing over the applicable limit.<\/p>\n

Common Myths Busted<\/h3>\n

Firstly, forget all of those adverts you used to see on the TV about being able to have two units in the first hour and one unit per hour subsequently. Trying to stay just under the limit is fraught with difficulty and there are too many variables for such a plan to work. The \u201cunit\u201d system was dreamt up years ago when wine glasses were smaller and the percentage of alcohol in wine was lower. Your size and the condition of your liver will affect how quickly booze enters your bloodstream. The rule these days is don\u2019t drink any booze and drive.<\/p>\n

Lots of people get caught the morning after the night before. If you have consumed a significant quantity of alcohol the night before don\u2019t get up and drive to work. Indeed, the night before\u00a0 you need to think about what time in the morning you are getting up to leave and allow sufficient time for the alcohol to clear from your system before getting behind the wheel. One rule of thumb is 12 hours between bottle and throttle, but even that won\u2019t work if you drink a lot just before you stop as there may not be sufficient time for the liver to do its thing.<\/p>\n

The Stance On Mouth Alcohol<\/h3>\n

Another thing to be mindful of is \u201cmouth alcohol\u201d. If you have a shot of whiskey and swill it around your mouth and spit it out then sit a breathalyser test you may well blow above the legal limit, even though there is barely any alcohol in your bloodstream and you aren\u2019t affected by it. The high alcohol content in your mouth produces a higher reading. For that reason most police services will allow a period of time to pass if you have just finished one small drink minutes before getting in the car and getting pulled over.<\/p>\n

If you think that the test must be wrong then you can politely request that a blood test be performed. Sometimes police say that they will just rely on the higher of the two readings but if your breathalyser test is over the limit and the blood test significantly lower then you might have a defence on the basis that the breathalyser test was flawed because of \u201cmouth alcohol\u201d.<\/p>\n

What If You Fail The Test?<\/h3>\n

One word of advice is that in dealing with police it is sensible to be polite and do exactly as you are told. If you are rude to them they will write that down in the document that will be read out in court at your sentence.\u00a0 \u201cThe defendant was extremely polite and cooperative and showed genuine remorse\u201d sounds a lot better than \u201cThe defendant was extremely rude and belligerent and repeatedly swore at attending police officers\u201d.<\/p>\n

The Law In Plain English<\/h3>\n

To the law; Queensland\u2019s drink driving laws are contained within the\u00a0Transport Operations (Road Use Management) Act 1995<\/em>\u00a0(\u201cTORUM<\/strong>\u201d) as it is often abbreviated. The offences are mostly contained within Section 79 of TORUM. There are different limits for different sorts of driver so if you are on your L plates or your P plates (or indeed unlicensed) you must have 0% alcohol in your bloodstream and you will be charged if you have even very low readings so hyper vigilance is required. For most drivers on an open licence the \u201cgeneral\u201d or low limit is .05% so the amount of alcohol in your blood stream must be below .05% (ie.049% or below). I have seen drivers charged with exactly .05%.<\/p>\n

If the reading is between 0.05% and 0.1% you would be charged with an offence of driving between the general alcohol limit and the \u201cmiddle\u201d alcohol limit. This is often referred to as a \u201clow range offence\u201d fines and licence suspensions apply. Generally speaking the higher the reading the greater the penalty. So if you have a good traffic history and blow .051% you might get a one month licence suspension and a $300 fine. If your traffic history is bad and you blow .09% you are looking at maybe 6 months suspension and a $700 fine but its not that simple because the court takes a whole bunch of factors into consideration when deciding what penalty to impose.<\/p>\n

The range of .01% to .15% is known as the mid range and more serious penalties apply. Above .15% is known as the high range and much more serious penalties apply. Precisely what penalties will apply is affected by section 86 of TORUM which provides for higher penalties in a wide range of circumstances. Most significantly if you have previous convictions for drink driving convictions in the past five years the penalties go up a lot.\u00a0 Automatic licence suspensions can apply for a year or two years depending on your circumstances.\u00a0 If you commit a second high range offence within five years actual imprisonment is a real possibility.<\/p>\n

Essentially then the higher the reading the more serious the offence but other factors are also taken into consideration such as:<\/p>\n