Drink Driving offences are offences of strict liability – effectively, if a person was suspected of driving/being in charge of or attempting to put a vehicle into motion and that person had a BAC greater than their allowed limit (See our full article on Drink Driving). Then that person is guilty of a Drink Driving offence. The Police have 3 hours from the time the defendant was suspected of driving to give them a breath or blood test.
There is, rarely a scenario which occurs where a person comes to the attention of police, they return home and consume a considerable amount of alcohol. This might looks something like this:
- Cara is driving along Discovery Drive in Helensvale and clips a light post and continues home. A witness calls the police, giving a description of the vehicle and licence plate. Cara arrives home, nerves are shot and she drinks ¾ of a bottle of wine in an hour before the police arrive. Cara tells the police that she had not consumed any alcohol before she drove and that she had drunk wine after the fact.
When this occurs, there is a possibility that a defendant could raise what is called a “Dorfler Argument” which arises from the case of Davies v Dorfler; Ex parte Davies [1988] 2 Qd R 490 (this case was further followed by Leach v Commissioner of Police [2009] QDC 66. In other words what happens if you drink after driving but before the police breath test you.
How can the defence be raised?
The defence can be raised if it can be proven that a defendant had consumed liquor after their driving and/or the prosecution cannot prove that the defendant had been under the influence of liquor at the time of driving.
It is important to note that this is not as simple as stating that you had not consumed liquor before driving and then you returned home and had a drink.
It is going to rely on a number of factors, including whether there was any visible evidence of alcohol consumption at home, your Blood Alcohol Reading measured against amount of alcohol drank and how much time has passed.
- Cara has clipped the light post on Discovery Drive at 6:00pm and travelled straight home, arriving at 6:05pm. She pours herself a glass of wine and drinks it. She repeats this until ¾ of the bottle has been consumed over 1 hour. The police arrive and administer a breath test which has a positive indication for alcohol. Cara is then taken to the Coomera Police Station where on a subsequent breath test she has a BAC of .134%.
How would it work?
- Age;
- Height;
- Weight;
- Gender;
- Amount and type of alcohol consumed;
- The period of time which you allege you consumed alcohol; and
- Your ultimate reading.
Do I have to take the defence to trial?
Example:
Peter was driving home after work where he had consumed a light beer at approximately 5:45pm. During travel he side swipes a Tesla car, gets out and inspects the damage. He ultimately leaves the scene and continues a few minutes until he arrives home at 6:05pm. There was a witness to the incident and the police were called, and arrive at Peters house at 8:00pm. Peter had a stressful day and was now panicking about having hit a car. Peter got home and started drinking ready to drink bourbon, he drank 8 cans until the police arrived at 8:00pm. Peter admitted to driving and hitting the other car and told police he’d had one drink at 5:45pm and got home at 6:05pm when he started drinking.
Police observed numerous cans of bourbon and they take him to the station for a breath test. His ultimate test returned a reading over in excess of .177%. Peter’s lawyer was able to negotiate with police, based on what they had witnessed, the time that had elapsed and simple calculations based off known rates of elimination to demonstrate that at the time of driving, he was likely not over a BAC of .05%.
Why doesn’t everyone do this?
Conclusion
This article is not and should not be taken as a complete explanation or legal advice regarding a forensic countback or a defence to drink driving. This article serves to give an overview on a misunderstood and uncommon defence to a very common charge.
If you are in a circumstance where you were consumed alcohol after you stopped driving and were subsequently breath tested, this is information you should bring up with your lawyer who can advise on all the facts, if there is an available defence.
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You won’t be chased or hounded to engage us. Remember its critical you get advice before going to court, a drink driving charge no matter the reading will have an impact on you, your family and your employment or business.
Charged and unsure what this means for you? This article is general information, not legal advice. For advice on your exact situation, call 1300 952 255 — free, 7am–7pm, 7 days — or visit our Drink driving lawyers page.