Using the home safe rule to defend a drink driving charge

If you’re charged with drink driving, you may receive advice that the easiest thing to do is plead guilty. Depending on your prescribed concentration of alcohol or PCA, your driving history and what led to your arrest, an experienced lawyer may advise the smart choice is to plead guilty and try to reduce the punishment.

However, there are some cases where defending a drink driving charge is possible, using a strategy like the home safe rule. Expert traffic lawyers will understand when and how to defend a charge, and if relevant try to have you found not guilty or have the charge withdrawn by police prosecutors.

What the law says

Under the law, police can’t make you provide a breath test at your home or usual place of residence.

If your lawyer raises the home safe rule as part of your defence, it’s up to the prosecution to prove, beyond a reasonable doubt, that the breath test was not carried out after you arrived home.

What is ‘home’?

The legal term has been updated to ‘home’ from ‘usual place of abode’, but essentially it means the same thing. Defining ‘home’ is key to whether this defence can be used in your case. Past decisions don’t provide a concrete definition – judges tend to decide on a case-by-case basis, however they do provide some guide as to what is and is not considered a home for the purpose of this defence.

Based on past cases:

  • you’re home at your ordinary residential property when you’re within the property boundary
  • even if part of your property isn’t fenced off or enclosed, it may still be home if it’s clearly part of where you live and enjoy your property
  • the entire grounds of a hospital or caravan park aren’t generally accepted as a home – the boundary of your residence within those grounds is your home
  • there’s no difference between single or multi-occupancy properties
  • a car park may be considered part of your home. You may be home if you park in your driveway or carport, or car space within the car park of the block of apartments where you live.

What can happen if you use this defence

If your lawyer can prove to the court the breath test was conducted after you’d arrived home safe, there could be several outcomes:

  • the court can throw out the evidence of the breath test, the arrest and further breath analysis based on the evidence being obtained illegally
  • the evidence can be judged as invalid, and not able to be used in court
  • you can challenge any charges of refusing to provide a breath test (if you knew your rights and refused at your home).

We can help

If you need help with a traffic offence, Conditsis Lawyers can provide you with advice on the best strategy for your case. Contact Conditsis Lawyers today.

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