In a recent decision, the NSW Supreme Court clarified what is meant by driving under the influence.
What is DUI?
Many people use the term “DUI” as an umbrella term to refer to all kinds of drink driving charges. This is not technically correct.
In law, there are two kinds of drink driving charges, DUI and PCA. Most drink driving charges are in fact PCA charges. PCA stands for Prescribed Concentration of Alcohol. When a person is breathalysed and returns a reading over the limit, the police will charge a PCA offence, not a DUI offence.
A DUI offence is used where Police do not have a reading but are instead relying on the fact that the person was under the influence of alcohol or other drug at the time of driving. Usually, to prove a DUI charge, Police rely on observations about the person’s appearance and behaviour to show that they were “under the influence”.
Until recently, many Lawyers and Magistrates thought that in order to establish a DUI charge, police had to establish that the person was so affected by alcohol or some other drug that their ability to drive was impaired. The recent Supreme Court Decision of DPP vs Kirby established that a DUI charge can be proved even where there is no proof that the person’s state of intoxication would have impaired their ability to drive. All the police have to prove is that the person was influenced by alcohol or a drug in some way, whether it was related to driving or not.
Whether or not this development is seen as positive will probably depend on a person’s individual point of view. Critics of this development may well argue that the function of DUI charges is limited to protecting against drivers whose ability to control a car is impaired by alcohol or some other drug and that this development is unfair because it unnecessarily punishes people who may have had a little bit of alcohol, may well be under the legal limit for a PCA charge and pose no danger on the road. On the other hand, supporters will no doubt say that anyone who is under the influence of alcohol or drugs to any extent should not get behind the wheel of a car.