Difference between Prescribed Concerntration of Alcohol (PCA) Offences and Drive Under Influence (DU

Police can conduct Breath Tests but not on all occassions

Police are able to conduct breath tests on drivers in NSW under certain circumstances.When a driver has been involved in a motor vehicle accident, when stopped for their manner of driving, or as it often the case at random breath test stations. The important factor is that the tests on drivers can only be conducted if they are detected and tested whilst on a public street. A public street is defined as a place open to and used by the public. This may also include public carparks, laneways, national parks.

If you are stopped by police and are not certain that it is lawful for them to subject you to a breath test,you are entitled to question whether or not you are on a public street in New South Wales.

A great example of a case we were involved in demonstrating the difference between PCA and Drive Under the Influence (DUI)

In a recent case a client was subjected to a breath test in the driveway of his home.The client lived in a block of units and had a few drinks before driving to the local shops.He had already entered the units driveway, which was private property,not open to anyone but the residents.The client tested positive to the road side breath test,was arrested and conveyed to the police station. At the Police Station he was subjected to a breath analysis which was positive.His licence was suspended and he was given a Court Attendance Notice.

The problem with this is that it was all illegal by the police to do this. The breath test should not have been conducted. The arrest was therefore unlawful and the subsequent Breath Analysis test at the police station was also conducted illegally.This has the potential to leave the police open to being sued civilly for false arrest.The taking away of a persons freedom and liberty can have extreme consequences and should only be used as a last resort by police or for a lawful purpose.

A week later the client was contacted by police and asked to attend the station.At this time he was given his drivers licence back and told that he had been charged with the incorrect offence.Police said he should have been charged with Drive under the Influence not Drive with Prescribed Concentration of Alcohol.The client was given a fact sheet,where police admitted that the Breath Analysis should not have been conducted. Police however still wanted to rely upon the illegally conducted roadside breath test.

Drive Under the Influence is a different offence and requires that Police base the proof of this offence on their observations.This may include the smell of alcohol on a persons breath,red blood-shot eyes,unsteadiness walking or standing, slurring of words. Often times police will exaggerate these observations to try to prove the elements of the offence to the Court.This was certainly the case for this particular client.All of a sudden after a few drinks, he was falling all over the place,sliding down his car, slurring his words.

As the client explained he was not even standing near his car let alone sliding down it.A neighbour of the clients was outside and watched the entire episode and was prepared to give evidence which supported the client.

After representations were put through to the Police outlining the circumstances and facts of the matter.Police decided to withdraw the charges against the client.Our client was extremely pleased at this result as he was a truck driver and would have lost not only his licence but also his job.As it was a Mid Range Reading the client would have faced a minimum of 6 months loss of licence.

It is important if you have any doubts about the lawfulness of your arrest and charges to seek legal advice at the earliest opportunity. Police do sometimes make mistakes. This was an instance where the client was not aware of the law relating to when Police can conduct breath tests and when they are not permitted to. This can be the difference between pleading guilty, or not guilty or having the charges withdrawn.

If you are interested to know something more on Difference between PCA and DUI and other details,you are welcome to the Drink Driving site.