Criminal Law News & Current Affairs

By Ben Aulich & Associates Ben Aulich & Associates


Jessica Vogel: An unfortunate problem with our drink-driving legislation

Drivers on Canberra’s road who are involved in accidents, and attend a hospital for treatment, whether immediately after the accident or within the six hours following, can be charged and found guilty of an offence of drink driving or drug driving, even if they were not affected by alcohol or drugs at the time of the relevant driving or the accident.

This may occur in circumstances a person is not taken to a hospital immediately after an accident but instead goes home and consumes alcohol or drugs as a form of self-medication; to calm their nerves or numb the pain but later determines they require treatment and attends a hospital for that purpose.

Doctors and nurses at Canberra’s hospitals have a duty to take a sample of a person’s blood if they believe that person was the driver of a vehicle which was involved in an accident within the 6 hours prior to that person having arrived at the hospital for treatment.   The blood sample needs to be taken within two hours of a person arriving at the hospital.

This means that a person’s blood alcohol level, or the presence of drugs, up to eight hours after a person ceased to have been the driver of a motor vehicle, is relevant for the commission of a drink driving or drug driving offence.

The obligation to take a blood sample does not extend to doctors and nurses at local general practitioners rooms or medical centres.

A driver involved in a car, or motorcycle, accident who has not consumed alcohol or drugs prior to driving should also avoid consumption of alcohol and drugs for six hours after the accident.

The ACT Supreme Court of Appeal has held, in the decision of Cooper v Hill [2014]ACTSC 94, that innocent post-accident consumption of alcohol or drugs may provide a basis for the particular exercise or prosecutorial discretion or discretion in sentencing however and a person who innocently consumes alcohol following an accident may be liable for automatic periods of licence disqualification of up to five years.



Jessica Vogel is a criminal lawyer at Ben Aulich & Associates