What is the "Legal" Blood Alcohol Limit?

Whilst the whole of Australia has a unified attitude to blood alcohol limits (BAL) and this is enshrined in legislation, as I reside in NSW I will restrict my comments to that State.

Some blood alcohol webpages are as follows:

For me the relevant sections are in the "0.05 alcohol limits" webpage and read as follows:

Under 0.05 is the legal limit for most drivers because of the well-documented crash risk associated with this blood alcohol concentration (BAC). This is the value shown in the table on the above website.

Have a good read on the webpage for full information.

These two lines imply, at least to me, that if you were to have a BAL reading of "bang on" 0.05 (ie 0.050), then you would be just on the "legal limit" and hence not guilty of any offence, but if you gave a reading of 0.051 then you would be "over the legal limit" and hence quilty of a low range offence.

As such, the RTA website and TV, radio, newspaper, etc, advertisements which include the "legal limit of 0.05" statement may be misleading when one digs a bit deeper and locates and reads the actual legislation which is worded in the following terms (reformatted):

[QUOTE]
The NSW Road Transport (Safety and Traffic Management) Act 1999, part 8A outlines the limits as they apply to NSW road users. This Part states:

8A Prescribed concentrations of alcohol
In this Part:
- (a) novice range prescribed concentration of alcohol means a concentration of more than zero grammes, but less than 0.02 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and
- (b) special range prescribed concentration of alcohol means a concentration of 0.02 grammes or more, but less than 0.05 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and
- (c) low range prescribed concentration of alcohol means a concentration of 0.05 grammes or more, but less than 0.08 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and
- (d) middle range prescribed concentration of alcohol means a concentration of 0.08 grammes or more, but less than 0.15 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and
- (e) high range prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood.

The Australian Road Rules – those that apply across the country – are contained within several pieces of legislation and regulation in New South Wales, including the above Act.

You will note that the level upon which you are deemed to be drink driving is at 0.05 or above. With respect to L and P platers, where a zero limit applies, anything above zero is a breach of the law.
[UNQUOTE]

Source: Extracted from an email from the now (ie as at Fri, 2011-06-24) NSW Police Minister, the Hon. Mike Gallacher MLC, dated 05/10/2010

So, is the "legal limit" 0.05grams/100mL or 0.049grams/100mL? The legislation and the Police seem to apply one "interpretation" and the RTA and the advertisers seem to be applying another.

I have never had any alcohol in my system when I've been driving and have always been proved so when pulled over for a random breathe test. However, I would be interested to hear from a good Solicitor and/or Barrister who may be able to suggest whether the above apparent inconsistency may be used as a defence by someone who may be "bang on" the so called "legal limit" of 0.05grams/100mL.

I would also be interested in comments on this issue from any NSW Magistrates who may read this page, in relation to this issue.

Basically, the issue probably comes down to "truth in advertising" and in this case the advertising does not, in my view anyhow, reflect the wording, content or intent of the relevant legislation and the public have a right to be treated in relation to what they are told in the "Government" advertisements on the TV, etc, sponsored by the RTA and Police at least until such time as the two conflicting sources are brought into alignment and agree with each other - either changing the legislation to reflect the advertisements (preferred) or to change the advertisements to properly reflect the legislation. As they stand the Police and courts are reading from a different book to that from which the public is reading based on the information being provided.

Some definitions of a "limit":

Other definitions, etc, can be located using "Google". However, the definitions shown in these two sources would suggest that a "Blood Alcohol Limit of 0.05" as per the Police Department's own advertising would mean just that, the upper "legal" limit, and which may disagree with that stated in the legislation, is 0.05 with no offence being committed until a reading of 0.051 is measured. It all comes down to definitions, grammar and what the public is told as compared to what is "published" in legislation, which unlike advertising, is not made public unless someone is actually researching it. Also, it would appear from an episode of "RBT" (Australian Nine Network) that even though the Police advertise one thing, they actually apply another and nobody seems to complain and the Judges don't seem to be using cases in which a driver may have a reading of "0.050" to test the legislation against the advertising and to either make the Police revise their advertising or the legislators to make a minor change to the legislation, one to reflect the other more accurately.

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