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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 70516
Experience:  Over 5 years in practice
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hi I failed a roadside breathe test after being stopped. The

Resolved Question:

hi I failed a roadside breathe test after being stopped. The 1st reason he gave for stopping me was I drove thru a red light.....I denied this, he then said the vehicle is not showing as being insured.....I denied this fact........he then asked if I had been drinking.....I said yes, but not excessively.......but failed the roadside breathe test........it was then over an hour until I was given the breathe test at the station........would this hour reflect badly on my reading...I registered 74 and then a 73....

thanks
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
Hi.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Would what reflect badly? The delay?
Customer: replied 3 years ago.

the time between being actually stopped driving and the time between providing a breathe test as evidence?

Expert:  Jo C. replied 3 years ago.
Had you consumed alcohol recently?
Customer: replied 3 years ago.

I was stopped at 1am....last drink was 12.30am

Expert:  Jo C. replied 3 years ago.
Thanks.

Generally speaking, alcohol will decline in your blood stream over a period of time. How quickly it declines depends on your particular metabolism but it is likely to be lower after a delay of the kind you describe.

The risk is that they will do a BAC calculation upon your breath reading that would ascertain how much alcohol was in your blood stream at the time of the driving but that is not likely. They don't use them for every case and there isn't particularly any aggravation here to justify the use of one.

Obviously though, if you blew 73 at the lowest reading at the police station then its not all that likely that the blood test would put you below the legal limit of 35 even after a delay I'm afraid.

I'm sorry this isn't the answer you wanted but it is the position that you face and I have a duty to inform you truthfully.

Hope this helps. Please let me know if you need more information.

Jo
Customer: replied 3 years ago.

ok thankyou,


I know that when I get to court the prosecutor will read a statement to say that I was driving erratically......can I contest this, as I was speaking to the officer at the scene and he did say that my demeanour was not that of one who had been drinking excessively?


 


 

Expert:  Jo C. replied 3 years ago.
You can offer that version of events to the court but obviously that wouldn't amount to a defence.

You can offer a plea on that basis. The risk is that the court would say that the difference between your version of events and those of the crown are so significant that they would affect sentence. Then they will have a hearing called a Newton hearing in which they determine which version of events they prefer and if you lose that then you will lose credit for a guilty plea.

But if your only point is that you weren't driving erractically then thats not likely to lead to a Newton hearing.
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