Facing a Drink Driving Charge? The Two-Hour Rule Explained

Police on watch for driving offences, driver needs a traffic offence lawyer

Being accused of drink driving is serious. Acting fast and seeking advice from a traffic lawyer can mean the difference between a fine, losing your license, or even gaol time. One legal strategy your lawyer might explore is the “two-hour rule.”

What is the two-hour rule?

The law states that police can’t force you to take a breath test (or have your blood drawn) more than two hours after you last drove. This is because your blood alcohol concentration can fluctuate over time, making earlier tests potentially inaccurate. The two-hour rule acknowledges this fluctuation and helps ensure a fairer reading.

How does it work in court?

The prosecution must prove beyond a reasonable doubt that the breath test or blood sample was taken within two hours of driving. If you claim it was beyond this time-frame, the burden of proof shifts to them. This defence focuses on the police procedures used during your arrest and charge.

When might it be useful?

This defence can be helpful in car accident situations. By the time police arrive, address safety concerns, and take you for a test, more than two hours might have passed. If the test occurs outside this window, it’s technically inadmissible evidence.


The prosecution might have other ways to prove your driving time, so don’t solely rely on your recollection.

Using the two-hour rule effectively:

Knowing when and how to use this defence is crucial. An experienced lawyer can assess your case and determine if it’s applicable and when to introduce it for maximum benefit.

Should you defend the charge?

Most drink driving charges aren’t defended due to efficient detection and prosecution systems and potential defence costs. The focus often shifts to minimising consequences, like avoiding convictions, reducing fines, or minimising license suspension/gaol time.

Pleading guilty might be the best option, but exploring all possibilities, including potential defences, with a lawyer is crucial before making a decision.

We can help

Our traffic offence lawyers have successfully represented hundreds of clients in Newcastle, the Hunter and Lake Macquarie who have been charged with DUI offences and are available for urgent on-the-spot advice over the phone on 0425 391 534 or call our office on 02 4058 5844 in person at our office near the Criminal Court in Hunter Street, Newcastle.

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