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Not Guilty of High Range Drink Driving and Police Ordered to Pay Costs


Our client is a 35-year old IT professional who had never previously been in trouble with the law.

He made a foolish decision to drive the short distance home after a work celebration, where he had been drinking alcohol.

Police followed him for about 20 seconds before he pulled into the driveway of his home. Police interpreted this as an attempt to evade detection and turned on their lights and sirens.

Police arrested and detained him on his property, then took him out to the front of his home to administer a breath test on a ‘road related area’.

Schedule 3 of the Road Transport Act prohibits police from subjecting a person to a breath test at on a property they own or occupy (this is known as the ‘home safely rule’), which gives rise to the inference that police were trying to circumvent the requirement by taking our client to the area in front of his property.

Our client blew a positive breath test and was conveyed to the police station, where he registered a high range reading for alcohol. He was then charged with high range drink driving.

Our client attended consultations with three criminal defence firms, who each advised him to plead guilty because he was in fact tested on a ‘road related area’ and his car was only partially parked on his own property. This is despite our client showing each of them CCTV footage from outside his home, which made it clear the ‘home safely rule’ had been breached.

Police produced statements to the effect that they ‘stopped’ our client on public land and that his car was not fully on his own property, which was inconsistent with the CCTV footage.

Our advice was that the breath test was clearly in contravention of the Road Transport Act, and was therefore illegal. The certificate in respect of the breath analysis was therefore inadmissible in court, and our client’s arrest and detention were also illegal.

Our client accepted our advice an elected to take the matter to a defended hearing.

At the hearing, both officers were extensively challenged about their statements and made significant concessions when confronted with the CCTV footage. It was made abundantly clear to the court during cross-examination that the officers had lied in their statements.

The court quickly found that the breath test was unlawful and dismissed the case against our client.

We then sought an order that police pay our client’s legal costs, which was granted.

We have advised our client in relation to a civil claim for false arrest and unlawful imprisonment.

In the meantime, our client remains conviction-free and is able to continue driving.

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