One of the most common questions people ask when they are charged with drink driving is what sentence they can expect to receive. The fact is that the conviction of driving with having excessive alcohol in your system is inflexible and stringent. There is an absolute of 12 month minimum which is required by law. But such sentences are very rare and so there shouldn’t be any assumption on part of the defense where the minimum is inadvertent.
The average though is 2 year bans for all but the lowest possible readings. When magistrates are considering sentencing they will keep the Magistrates Association Sentencing Guideline in perspective which guides them to slap lengthier bans, prison time and community service. But these are just guideline and are applied to very high reading. That said a well prepared mitigation case relating to the offence and the client can end up bringing down the total.
But the court will want to always consider an awareness course to slash this ban by 1/3rd. A reading between 100 and 120 and a previous conviction will mean that you need to have an excellent drink driving solicitor to back you up. It is also possible to avoid being taken into custody if the right steps are taken.
Mitigating the damage
There are a number of different schools of thought when it comes to drink or drug driving pleas and what materials the court deems as being relevant. The one approach often taken by lesser experienced drink driving solicitors is advising their clients that there is no point mitigating these offences when there are clear magistrate guidelines on the table.
But this is just downright defeatist and is of absolutely no help to a client, so it’s best that people avoid these types of solicitors. The fact remains that lawyers have an option to get some leniency from the magistrate on an array of charges and a guilty plea which is well argued can help to reduce a ban of a year or more significantly.
The other and perhaps more convincing school of thought or approach is that mitigating the evidence on which the allegations are based can prove that the offence is far less serious and merits a lower sentencing. This is conventional wisdom, meaning that the facts which pertain to the offence is of importance and not the client’s personal circumstances which led to the event.
That said most magistrates are not lawyers and so they are subject to the motivations and urges that most people wrestle with when making decisions about what needs to be done with a particular set of people which in this case is drunk drivers.
Take for instance a person whose family life, career and health are in tatters or is caring for a loved one who is disabled or has mobility issues. When such situations are presented with sensitivity, it can often amount to a reason to reduce the ban significantly provided that its mentioned in a professional manner.
The classic defense used by drink driving solicitors is the hip flask defense, of necessity and of laced drinks. These are usually fought under the Special Reasons Provisions.
A few Special Reasons
Special Reasons are the legal principles which have been codified during the case between Kirby vs. Whittall, this case gives the judge’s discretion not to disqualify a person who was found drunk driving even though they are guilty by law. This is an exception mitigation circumstance meaning according to leading lawyers like TheDefenders.com.au that there will be no ban imposed.
However, not every drink driving solicitor can use this and it cannot be used for every drunken driving charge. This is why someone who has been arrested or charged with drink driving should start by not wasting time and hire an experienced lawyer right away.
Then based on a number of different factors the solicitor should be able to draft a game plan for the case which if successfully executed can either get you acquitted or perhaps a mitigated sentence both of which are a whole lot better than a huge fine and a driving ban.
Mark has been an attorney specializing in criminal cases for over twenty years. He is one of the most successfully drink driving solicitors in Australia and is famous for coming up with excellent game plans. He has also written extensively about various lawyers and what people can do if they find themselves in a bad situation.