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Christian Farrelly

Christian Farrelly is a solicitor whose professional focus is superannuation. He also has an interest in commercial and criminal law and wills and probate.

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Published: 24 June 2011
Author: Xavier Farrelly

Drivers holding their breath over drink driving charges

It is not unusual for drivers to try to wriggle out of a drink driving charge, usually with little success. But a recent case has hundreds of lawyers and their clients, well, holding their collective legal breath.

In the matter of the Director of Public Prosecutions v Piscopo, which has now run through several courts, Mr. Piscopo has contested the legality of a drink driving charge of failing to accompany police back to the station for a second breath test. He first failed a roadside breathalyser test.

A second breath test is required as evidence in proving any drink driving charge. Complying with a police request is not mandatory but if you don't you will be charged with failing to accompany which carries a minimum 24 month suspension of license.

Mr Piscopo initially won his case at the Magistrates' Court and has since won his case in the Supreme Court on 12 November 2010. The result has been appealed by the DPP to the Court of Appeal.

The Supreme Court said the police had failed to make a valid request for Mr Piscopo to accompany them to the station because they had not explained to him that he was only required to remain at the police station for a maximum of three hours, or until a sample of breath was furnished. As a valid request had not been made the Court held that Mr Piscopo had not failed to accompany the police.

This case also only applies to instances where police gave the old warning. The police have since amended the warning they issue to drink drivers so that the defence is not usually available to those charged in the last few months.

However anyone facing charges prior to that time could well have their case dismissed should the Court of Appeal rule in favour of Piscopo.

Xavier Farrelly works at Stringer Clark in Warrnambool and Portland. While his primary area of practice is injury law, Xavier also handles criminal proceedings for clients in South West Victoria.

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