If you are caught drink driving due to an emergency situation then you might have a defence. Alternatively, the extenuating circumstances can be a strong argument for a reduced penalty.
Necessity Defence
When someone commits an offence in response to an emergency they might be able to rely on the defence of ‘necessity’.
The necessity defence allows a magistrate to find people ‘not guilty’ if they had to commit the offence to avoid even more dire consequences.
A defence of necessity might be available if:
- The drink driving was done in order to avoid ‘irreparable evil’ (e.g. death or serious injury) to yourself or others;
- You honestly believed on reasonable grounds that you were in a situation of imminent peril; and
- The acts of drink driving were not out of proportion to the peril you were trying to avoid.
Unfortunately, it’s very rare for the defence of necessity to be successful because the criteria the magistrate needs to consider is very strict. However, although it’s difficult it’s not impossible.
If you think you might have a necessary defence for your drink driving charge then it’s a good idea to speak with a lawyer.
Leniency
Where it’s not possible to be found ‘not guilty’, the emergency can still be a factor that helps to reduce the penalty you receive.
When a magistrate is sentencing someone for drink driving they have a few options for leniency.
Firstly, the magistrate can choose not to record the conviction. This is sometimes called a ‘section 10’ or ‘non-conviction’. The offence still goes on the person’s record, but there’s no punishment (i.e. no fines, no jail and no licence disqualification).
When deciding whether to grant a non-conviction the magistrate must consider any ‘extenuating circumstances’. Responding to an emergency can be an extenuating circumstance justifying a non-conviction.
We have been successful in achieving non-convictions in drink driving cases where the person only drove because they or someone else was in danger.
Even if the emergency wasn’t enough to justify a non-conviction, it is still a factor the magistrate can consider when deciding what penalty to impose. It might justify a shorter disqualification period and lower fines.
If you have been caught drink driving in an emergency situation please contact us at Ainsley Law. Our team of lawyers can guide you through your options.
Please call us today at (02) 8294 5697 or leave an enquiry.
