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Articles
- Drink Driving Facts
- Drink Driving Penalties NSW
- How to Beat a Drink Driving Charge
- How to Get a Section 10 for Drink Driving
- Novice Range PCA
- Special Range PCA
- Low Range PCA
- Mid Range PCA
- High Range PCA
- Drive Under the Influence of Alcohol - DUI
- Refuse Breath Analysis
- Mandatory Interlock
- Drink Driving Lawyers Sydney
Drink Driving Facts
Our Traffic Lawyers have put together the below pictorial outlining some interesting facts that you may not have known about drink driving. With drink driving penalties and the potential impact on the community being so severe, it is important to be aware of the risks involved, before drinking and driving.
If you have been charged with a drink driving offence and need assistance, contact us to speak to one of our Drink Driving Lawyers Sydney, Parramatta, Chatswood, Sutherland or Wollongong.
Drink Driving Penalties NSW
When it comes to drink driving penalties NSW is known to have one of the toughest sentencing regimes in the country. It is well known that in NSW, police have the power to stop a driver at random for the purpose of a breath test. If the driver returns a positive result (ie, 0.05 or more or for some drivers, such as provisional drivers, any reading whatsoever), then the driver can be arrested for the purpose of a breath analysis. The breath analysis machine determines the driver's blood-alcohol concentration and if the level is higher than the allowable limit that relates to the type or status of the particular driver's licence, then an offence has been committed.
The law sets categories or ranges of blood-alcohol concentration, known as ranges of Prescribed Concentration of Alcohol (PCA). The higher the range, the higher the available penalties and disqualification periods. Of course, there are also other drink driving offences that do not relate to a specific concentration of alcohol, the most common being "drive under the influence of alcohol".
Our Drink Driving Lawyers Sydney & NSW work from multiple office locations and have successfully represented thousands of clients throughout NSW Courts. Below are the more common drink driving related offences that appear before the Court:
- Low Range PCA: 0.05 ≤ and < 0.08- Mid Range PCA: 0.08 ≤ and < 0.15
- High Range PCA: 0.15 or higher
- Novice Range PCA: 0.00 < 0.02
- Special Range PCA: 0.02 ≤ and < 0.05
- Refuse Breath Analysis
- Drive Under the Influence of alcohol (DUI)
Low Range PCA; Novice Range PCA; & Special Range PCA
|
Offences |
Maximum
Fine |
Disqualification |
Minimum
Interlock Period |
Maximum
Gaol |
|
|
|
|
Automatic |
Minimum |
|
|
|
1st offence |
$1,100 |
6 months |
3 months |
- |
- |
|
|
|
Automatic |
Maximum |
|
|
|
2 or more |
$2,200 |
1 month |
3 months |
12 months |
- |
Mid Range PCA & Drive Under the Influence
|
Offences |
Maximum
Fine |
Disqualification |
Minimum
Interlock Period |
Maximum
Gaol |
|
|
|
|
Automatic |
Minimum |
|
|
|
1st offence |
$2,200 |
12 months |
6 months |
- |
9 months |
|
|
|
Automatic |
Maximum |
|
|
|
2 or more |
$3,300 |
6 months |
9 months |
24 months |
12 months |
High Range PCA & Refuse Breath Analysis
|
Offences |
Maximum
Fine |
Disqualification |
Minimum
Interlock Period |
Maximum
Gaol |
|
|
|
|
Automatic |
Maximum |
|
|
|
1st offence |
$3,300 |
6 months |
9 months |
24 months |
18 months |
|
|
|
Automatic |
Maximum |
|
|
|
2 or more |
$5,500 |
9 months |
12 months |
48 months |
2 years |
Our lawyers have particular expertise in defending drink driving charges or, reducing disqualification periods and penalties upon a plea of "guilty". We are also able to have a drink driving charge reduced to a lesser charge, under certain circumstances.
If you have been charged with an offence and are requried to go to Court, our experts at Prime lawyers - Traffic Law Division can help. Contact us to make an appointment with at your nearest Prime Lawyers office.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
How to Beat a Drink Driving Charge
Many people think that just because they have been charged with drink driving (often referred to as a PCA or DUI charge) that they have no option but to plead guilty to the charge and accept the harsh drink driving penalties that come with it.
This is a misconception. Although rare, it is possible to beat a drink driving charge and our Drink Driving Lawyers have successfully done so many times.
So how can you defend a PCA (Prescribed Concentration of Alcohol) charge? The most common reasons for defending PCA offences are:
1. Honest and reasonable mistake
2. Blood alcohol level was lower at the time of driving
3. Police procedure had not been properly complied with
4. Police cannot prove that the person was driving or attempting to put the vehicle in motion
Honest and reasonable mistake
It is a defence to a PCA charge if you honestly and reasonably believed that you were under the legal limit when you were driving.
Once this defence is raised, it is for the prosecution to prove that the mistake was either not honest or not reasonable. Although in theory this can seem like a simple exercise, in practice, depending on the circumstances surrounding the case, it can sometimes prove a little more difficult for a Court to accept that the mistake was reasonable.
It is, however, an available and legitimate defence and our experienced lawyers can advise you of the merits of such a defence depending on your circumstances.
Lower blood alcohol level
The breath-testing instrument used by police at the side of the road does not give an accurate reading of a person's blood alcohol level. The police cannot rely on the result to charge you with a PCA offence. A positive reading, however, allows police to arrest you for the purpose of submitting you to an official breath analysis (either at a police station or at a nearby mobile testing site) on a different instrument. It is only the result of the breath analysis taken after your arrest that the police can rely on, even though the result is obtained some time after the last act of driving.
However, as we know, to be guilty of a PCA offence, the relevant time that the person needs to be in the PCA category alleged is at the time of driving (or attempting to put a vehicle in motion). This means that it is the blood-alcohol level at the time of driving that matters.
It is common knowledge that a person's blood-alcohol level rises and falls over time, even if the person has stopped drinking. It is therefore also common that, given that there is often some time lapse between being pulled over, arrested and eventually submitted to the official breath analysis, your blood alcohol-level at the time the official reading is obtained is different from what it would have actually been at the time of driving.
It is therefore sometimes possible to prove, through the use of a expert pharmacologist evidence, that although a person's blood-alcohol level was above the legal limit at the time of the "official" breath analysis, it would have in fact been lower than the legal limit at the time of driving. If this can be proved, then the person cannot be guilty of drink driving.
Through the same process, it is also possible to successfully have a High Range PCA charge reduced to a Mid Range and a Mid Range PCA charge reduced to a Low Range. This can result in a major difference in penalties and more importantly, periods of licence disqualification.
Police not complying with procedure - "Two hour rule"
Certain procedures need to be followed by police when they arrest and charge someone with a drink driving offence. The procedures to be followed are governed by NSW law. There are several procedural requirements that police are meant to comply with and not complying with these procedures can sometimes result in a person successfully defending a PCA charge.
Although there are several requirements that can give rise to defending a drink driving charge, in relation to a PCA offence, the most important requirement that must be followed by police is to obtain the breath analysis certificate within a period of two hours of the last known act of driving (or, attempting to put the vehicle in motion). This is sometimes referred to as the "two hour rule".
There is a requirement that the police are to obtain a breath analysis result (different to the roadside breath test) within two hours from the time a person was driving. Firstly, this means that a police officer is not supposed to submit someone to a breath test if it is more than two hours since the person lat drove. More importantly, and for the purpose of successfully defending a drink driving charge, it is a precondition to the admissibility of the breath analysis certificate (which is used to prove the blood-alcohol content of the driver) that it is obtained within two hours.
Therefore, if the police have obtained a blood-alcohol reading by way of a breath analysis more than two hours after the last known act of driving (or attempt to put a vehicle in motion), then the breath analysis certificate cannot be used in evidence to prove the driver's blood-alcohol content. This would then mean that the police would have to rely on some other means to prove that the driver was driving with a range of prescribed concentration of alcohol. In practice, this is near impossible.
Driving or attempting to put the vehicle in motion
The most common way that drivers are charged with PCA drink driving offences is by way of a Random Breath Test (RBT). Under those circumstances, the question of whether the person was driver and at what time the driving occurred does not become an issue. However, there are often circumstances where police do not witness an act of driving and have to rely on other witnesses, admissions by the accused or other circumstances to prove that the person was driving and when.
Other times, police attend upon a driver who may be sitting in the driver's seat and then the issue of contention is whether or not the person was driving the vehicle at the time and/or attempting to put the vehicle in motion.
In most circumstances, police will charge the driver, knowing that most people will just plead guilty to the offence or, obtain legal advice and be told by their lawyer that they need to plead guilty to the offence because "no one will believe" that they were not driving or attempting to put the vehicle in motion.
Of course, most lawyers find it difficult to accept that these offences can be defended and forget that it is always a matter for the prosecution to prove each element of the charge beyond a reasonable doubt. In circumstances where a defence is a available for a drink driving charge, a very competent lawyer can successfully defend the charge without the need for the accused person to give evidence.
You can read further in our "results" section an example of a Prime Lawyers drink driving lawyer successfully defending a high range drink driving charge.
If you have been charged with a drink driving offence and require legal representation, contact one of our experienced lawyers at your nearest Prime Lawyers office.
We have offices located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
How to Get a Section 10 for Drink Driving
Section 10 and Drink Driving
Being charged with driving under the influence of alcohol (“DUI”) or for a prescribed concentration of alcohol drink driving offence (such as "Low Range PCA", "Mid Range PCA" or "High Range PCA") is considered a major traffic offence and is in fact a criminal offence. Being convicted of such an offence will not only impact on one’s ability to drive, but may also affect current and future employment prospects, travel plans (such as the ability to obtain a travel visa to certain countries) and also carry with it a permanent record of a criminal conviction.
Fortunately, the Law recognises that there are circumstances in which a person should be entitled to avoid a conviction for drink driving and other criminal and traffic offences by the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999. An order under this section is commonly referred to a "Section 10 dismissal", and enables a Court upon a plea of guilty or finding of guilt to order the dismissal of charges without recording a conviction. The effect of this is the person committing the offence with not have a conviction for drink driving or other criminal or traffic offences recorded on their criminal record and will not face any penalty.
This can be especially important in DUI and drink driving matters, because on a plea or finding of guilt, it is the only way the person can avoid a disqualification period. (Read further on the more common drink driving penalties here). It must be borne in mind, however, that the sentencing principles that guide Magistrates in dealing with drink driving matters place more emphasis on punishing the offender for their offending, rather than excusing their behaviour for other reasons.
How do I get a section 10?
An order under Section 10 is discretionary, and although there is no guaranteed path to obtain a drink driving section 10 we have identified the following top 4 points which will increase your chances of obtaining a section 10 and avoiding a conviction:
Point #1 as to how to get a section 10: Obtain references from people of good standing.
A Court is much more likely to order a section 10 if the Court accepts that the conduct in question was out of character, an error of judgment, or innocent mistake. A Court is far more likely to accept the conduct as being out of character if references are obtained from people of good standing and known to you for a number of years, who can attest to your good character. While your best friend is likely to give a reference think about obtaining a reference from an older family member, employer or someone well respected in the community who is willing to attest to your good character.
Point #2 as to how to get a section 10: Attend a course to address the behaviour concerned.
If you have been charged with DUI it is advisable to enrol in the Traffic Offenders Programme, which is a programme designed to educate drivers as to the dangers and consequences of driving offences such as drink driving. Successful completion of this course before sentencing allows the Court to take into account that the offender has sought to avoid a future transgression by attending such a program and has taken steps to rehabilitation.
Point #3 as to how to get a section 10: Provide evidence of the likely impact of a conviction.
If your current or future employment is in jeopardy because of a conviction for drink driving or other offence, then provide the Court with sufficient evidence of the likely consequence of a conviction. For example, if holding a licence is a requirement of employment then statements to this effect should be obtained from your employer, perhaps even with the inclusion of terms of the employment agreement or job requirements.
Point #4 as to how to get a section 10: Hire a good lawyer.
Magistrates see and hear dozens and dozens of the same charges on an ongoing basis. To avoid simply becoming one of the crowd you need to ensure that you have legal representation that is able to explain to the Court why it should exercise its discretion and dismiss the charge under Section 10 for your particular case. Obtaining a good lawyer is often the difference between obtaining a Section 10 and not. Hire a lawyer knowledgeable in not only the law, but a lawyer that has experience in these types of offences; experience in obtaining section 10 for other clients charged with similar offences; and a lawyer who appears before, and knows the types of submissions likely to be welcomed and understood by the Magistrate who will be hearing your matter. Each case is unique and you need a lawyer skilled in all of these aspects to provide you with the best possible chance to obtain a section 10.
The traffic and criminal lawyers at Prime Lawyers appear each week in their local Courts and, where required, on appeal in the District Court. We are experienced in representing clients who have found themselves charged with serious traffic and criminal offences, often for the first time in their lives, and we are able to best represent you in Court to explain and address the Court on your conduct, and the reason why the Court should accept the most appropriate order to be a section 10 dismissal.
We have Drink Driving Lawyers who represent clients in all of the Local Courts throughout the Sydney metro and beyond, and have offices for your convenience in Sydney, Chatswood, Parramatta, Sutherland and Wollongong. Get in touch with us now by clicking here to see how we can help you.
Novice Range PCA
The Law
Novice Range PCA is a drink driving offence that carries with it fines and a mandatory disqualification period upon conviction.
"PCA" stands for "prescribed concentration of alcohol". To be able to prove this charge, police need to obtain evidence and prove that the person blood alchol content was within the particular PCA range.
The Novice Range PCA means a concentration of more than zero, but less than 0.02.
Pursuant to section 110(1) of the Road Transport Act, a novice driver must not, while there is present in their breath or blood the novice range prescribed concentration of alcohol:
(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion.
"Novice driver" by definition mainly includes a learner licence holder (or someone who has had their learner licence suspended or disqualified); a provisional licence holder (or someone who has had their provisional licence suspended or disqualified); and someone who has never held a licence.
Penalties
The penalties that apply to a Novice Range PCA drink driving offence are as follows:
Offences | Maximum Fine | Disqualification | Minimum Interlock Period | Maximum Gaol | |
|
| Automatic | Minimum |
|
|
1st offence | $1,100 | 6 months | 3 months | - | - |
Automatic | Maximum | ||||
2 or more | $2,200 | 1 month | 3 months | 12 months | - |
Mandatory Interlock
Upon convicton, a Mandatory Interlock order upon convicting someone for their "second or subsequent" Novice Range PCA offence. Read the following article for more information on Mandatory Interlock Orders.
Defence
It is a defence to a charge of Novice Range PCA if the driver can prove that that alcohol was consumed solely for the purposes of religious observance (such as taking Communion) or was ingested for some other purpose, such as medicinal reasons, rather than for the purpose of consuming the alcohol.
Of course, there are other defences to Novice Range PCA, which are common to all other PCA and DUI offences, as can be seen in our article on "How to Beat a Drink Driving Charge".
Where the charge cannot be defended, an experienced Traffic Lawyer can properly prepare and present your case to ensure that your chances of avoiding a disqualification or reducing penalties are maximised.
Therefore, even where someone decides to plead "guilty" to a Novice Range offence, there is great value in engaging a Traffic Lawyer with specific experience in this area of law.
If you have are facing a Novice Range PCA charge and are required to attend Court, contact one of our lawyers at Sydney, Parramatta, Chatswood, Sutherland or Wollongong for assistance.
Special Range PCA
The Law
A Special Range PCA offence is considered a major traffic offence and, despite the penalties not including a gaol term, a conviction for this offence carries with it severe penalties.
"PCA" stands for "prescribed concentration of alcohol" and all PCA offences require that the police prove that a driver was driving whilst their blood alcohol level was within the particular range alleged. The special range prescribed concentration of alcohol is 0.02 or more, but less than 0.05.
Pursuant to section 110(2) of the Road Transport Act, a person must not, while there is present in their breath or blood the special range prescribed concentration of alcohol, if the person is a special category driver:
(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is the holder of an applicable driver licence - occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.
"Special category driver" is defined at section 107(2) of the Road Transport Act. The most common type of special category driver is a driver with a learner's licence, a driver with a provisional licence and a driver whose licence is at the time suspended or who has been disqualified from driving.
It must also be remembered that learner and provisional licence holders are required to have a blood alchol reading of zero.
Penalties
The penalties that apply to a Special Range PCA offence are as follows:
Offences | Maximum Fine | Disqualification | Minimum Interlock Period | Maximum Gaol | |
|
| Automatic | Minimum |
|
|
1st offence | $1,100 | 6 months | 3 months | - | - |
Automatic | Maximum | ||||
2 or more | $2,200 | 1 month | 3 months | 12 months | - |
Mandatory Interlock
A Court must also make a Mandatory Interlock order upon convicting someone for their "second or subsequent" Special Range PCA offence. This means that in addition to a period of time that a driver is disqualified from holding or obtaining a licence, the driver must obtain an Interlock licence and can only drive a car fitted with an Interlock device during the Interlock period.
Read here for more on Mandatory Interlock Orders.
The above penalties apply to someone who is convicted by the Court; ie, where the Court has formed the view that the person should be punished for the offence. Of course, as with all criminal and traffic law matters that come before the Court where someone pleads "guilty", the Court can dismiss the charge witout recording a conviction and therefore, without punishing the offender. Otherwise, the Court can exercise its discretion to impose penalties and disqualifiaton periods that are below the maximum.
Therefore, even where someone decides to plead "guilty" to a drink driving offence, engaging an experienced Traffic Law and Drink Driving Lawyer who has the knowledge and ability to persuade the Court to either not proceed to a conviction or to reduce the penalties that would otherwise apply.
If you have been charged with a Special Range PCA offence, contact one of a drink driving lawyers at your nearest Prime Lawyers office.
We have offices in Sydney, Parramatta, Chatswood, Sutherland or Wollongong. We have the required experience and knowledge to help you obtain the best result.
Low Range PCA
The Law
A Low Range PCA offence like all PCA offences is a drink driving charge where the police need to prove that the driver has present in his or her breath (or blood) the "prescribed concentration of alcohol" (PCA) for that offence. The prescribed concentration of alcohol for a Low Range PCA offence is an amount of 0.05 and above, but below 0.08.
Pursuant to section 110(3) of the Road Transport Act, a person must not, while there is present in the person’s breath or blood the low range prescribed concentration of alcohol:
(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is the holder of an applicable driver licence - occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.
Penalties
The overall penalties for a Low Range PCA offence are not as severe as they are for other types of drink driving offences. However, as with most other drink driving offences, mandatory disqualification periods still apply.
The penalties that apply to Low Range PCA offences are as follows:
Offences | Maximum Fine | Disqualification | Minimum Interlock Period | Maximum Gaol | |
|
| Automatic | Minimum |
|
|
1st offence | $1,100 | 6 months | 3 months | - | - |
Automatic | Maximum | ||||
2 or more | $2,200 | 1 month | 3 months | 12 months | - |
The Court has some discretion regarding all drink driving penalties and is able to vary the fine payable and importantly, vary the disqualification period. Of course, in suitable cases, the Court can decide to not convict the driver and instead, dismiss the charge pursuant to section 10 of the Crimes (Sentencing Procedure) Act. Should the Court dismiss the matter pursuant to section 10, then no fines or disqualification periods apply.
Mandatory Interlock
Since February 2015, a Court must make a Mandatory Interlock order upon convicting someone for their "second or subsequent" Low Range drink driving offence. Essentially, in addition to a period of time that a driver is disqualified from holding or obtaining a licence, the driver must then obtain an Interlock licence and can only drive a car fitted with an Interlock device during the Interlock period.
Read here for more on Mandatory Interlock Orders.
Commentary
It is a common misconception that anyone who goes before the Court for their first Low Range Drink Driving PCA matter will not receive a conviction and have their matter dealt with pursuant to section 10 of the Crimes (Sentencing Procedure) Act.
This misconception often results in many drivers going to Court self-represented with the false belief that they will achieve the desired result just for attending or, if the driver decides to obtain the services of a lawyer, to simply find someone cheap (who may or may not have the required experience in traffic law and drink driving matters) who will "guarantee" the result, without having the required expertise, knowledge or a proper understanding of the Court's approach to these matters. Every case is different and the advice given and approach taken by a lawyer must be tailored to the specific circumstances of the case.
It is therefore important to obtain competent legal advice and representation when charged with Low Range drink driving, to firstly consider the prospects of defending the charge and then in ensuring that all necessary steps are taken to reduce the penalties that may be imposed. Our drink driving lawyers have the required experience to prepare your case and successfully argue and persuade Courts to apply leniency in sentencing and provide you with the best chance of having your matter dismissed pursuant to section 10.
If you have been charged with a Low Range PCA offence, we invite you to contact one of our Drink Driving Lawyers Sydney and NSW.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
Mid Range PCA
The Law
A Mid Range PCA offence is a drink driving offence that requires that a driver has present in his or her breath (or blood) the mid range "prescribed concentration of alcohol" (PCA), which is an amount of 0.08 and above, but below 0.15.
Pursuant to section 110(4) of the Road Transport Act, a person must not, whilst present in their breath or blood the middle range (mid range) prescribed concentration of alcohol:
(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is the holder of an applicable driver licence - occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.
Penalties
The penalties for a Mid Range PCA offence can be severe and people are often surprised to learn that it is possible to go to gaol for a Mid Range offence.
Offences | Maximum Fine | Disqualification | Minimum Interlock Period | Maximum Gaol | |
|
| Automatic | Minimum |
|
|
1st offence | $2,200 | 12 months | 6 months | - | 9 months |
Automatic | Maximum | ||||
2 or more | $3,300 | 6 months | 9 months | 24 months | 12 months |
The Court has some discretion regarding all drink driving penalties and is able to vary the fine payable and reduce the disqualification period. We understand what is required to persuade the Court to reduce a penalty. However, it must be noted that the automatic 12 month disqualification period for a first offence IS NOT the maximum period and that the Court has the discretion to actually increase the disqualification period beyond the automatic. Of course, in suitable cases, the Court can decide to not convict the driver and instead, dismiss the charge pursuant to section 10 of the Crimes (Sentencing Procedure) Act. Should the Court dismiss the matter pursuant to section 10, then no fines or disqualification periods apply. It must be noted that section 10 is not regularly applied to Mid Range charges.
Mandatory Interlock
Since February 2015, a Court must make a Mandatory Interlock order upon convicting someone for their "second or subsequent" Mid Range PCA offence. An Interlock order requires an initial period of disqualification for anywhere between 6 and 9 months. After that period, the offender will need to obtain an Interlock licence should they wish to return to the road. This licence is to be held for as long as the Court orders, which is at least for the minimum period listed in the above table.
Read here for more on Mandatory Interlock Orders.
Defences
It is possible, although difficult, to defend a drink driving charge. Defences can arise in the following circumstances:- the police cannot prove that the driver was driving at the time of the alleged offence
- the driver was not attempting to put the vehicle in motion (if it is alleged that this is the offending conduct)
- the driver is able to prove that the driver's blood-alcohol level was below 0.08
- the police obtained a sample of breath more than two hours after the time the alleged offence was committed.
Read more on how to defend a drink driving charge or our case study on a successful high range drink driving defence.
Commentary
As seen above, an available penalty to the Courts for any Mid Range offence is a term of imprisonment. Although this is an available penalty, it is the least likely result in most Mid Range matters that come before the Courts. However, a small percentage of offenders who have been convicted of Mid Range drink driving do go to gaol.
When sentencing an offender for a drink driving matter (or any serious traffic offence), the Court must consider "mitigating" and "aggravating" factors that are present in determining what the penalty should be. Aggravating factors are matters specific to the particular case that make the offending more serious and/or, place the offender in the more serious category of offender. The greater the aggravating factors, the more severe the penalty will be.
Examples of aggravating factors that the Court is to take into account in considering whether to impose a harsher penalty include:
- where the driver has driven erratically or had an accident
- where the blood-alcohol reading is at the higher end of the range
- where there are passengers in the car
- where the driver has committed other offences at the same time
- where the driver is a Provisional driver
It is therefore important to obtain competent legal advice and representation when charged with any drink driving offence, to firstly consider the prospects of defending the charge and to then ensure that all necessary steps are taken to reduce the penalties that may be imposed. Our drink driving lawyers have the required experience to prepare your case and successfully argue and persuade Courts to apply leniency in sentencing or to defend a drink driving charges, in the rare circumstances that this can be achieved.
If you have been charged with Mid Range PCA, we invite you to contact us at your nearest Prime Lawyers office to speak to one of our solicitors.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
High Range PCA
The Law
A High Range PCA offence like all PCA offences is a drink driving charge that requires the police to prove that the driver had in his or her breath (or in his or her blood) a "prescribed concentration of alcohol" (PCA). The prescribed concentration of alcohol for a this offence is any amount of 0.15 and above.
Pursuant to section 110(5) of the Road Transport Act, a person must not, while there is present in the person’s breath or blood the high range prescribed concentration of alcohol:
(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is the holder of an applicable driver licence - occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.
Penalties
The law holds that it is only under exceptional circumstances that an offender should avoid a conviction if found guilty of a High Range PCA offence. Therefore, it is an almost certainty that a person pleading guilty to or being found guilty of this offence will be convicted.
Upon conviction, there are mandatory penalties that apply to a High Range offence, which vary, depending on whether the offence is considered a "first offence" or "second or subsequent offence".
The penalties for High Range PCA are set out below:
Offences | Maximum Fine | Disqualification | Minimum Interlock Period | Maximum Gaol | |
|
| Automatic | Maximum |
|
|
1st offence | $3,300 | 6 months | 9 months | 24 months | 18 months |
Automatic | Maximum | ||||
2 or more | $5,500 | 9 months | 12 months | 48 months | 2 years |
The Court has some discretion regarding penalties and is able to vary the fine payable and importantly (but to a limited extent) the disqualification periods. Our drink driving lawyers have the required experience to prepare your case and successfully argue and persuade Courts to apply leniency in sentencing.
Mandatory Interlock
Since February 2015, a Mandatory Interlock order is to be made by a Court when sentencing offenders for certain drink driving offences. An Interlock order, but for certain exemptions, must be made by a Court upon conviction for any High Range PCA offence, in addition to the disqualification period. Essentially, in addition to a period of time that a driver is disqualified from holding a licence and being allowed to drive, the driver must then obtain an Interlock licence and can only drive a car fitted with an Interlock device during the Interlock period.
Read here for more on Mandatory Interlock Orders.
Defences
It is possible, although difficult, to defend a drink driving charge. Defences can arise in the following circumstances:
- the driver was not driving
- the driver was not attempting to put the vehicle in motion (if it is alleged that this is the offending conduct)
- the driver is able to prove that, at the time of the alleged offence, the driver's blood-alcohol level was below 0.15
- the police obtained a sample of breath more than 2 hours after the time the alleged offence was committed
See an example of one of our lawyers running a successful defence to a high range drink driving charge.
Commentary
It must be understood that a High Range drink driving charge is considered a serious offence in NSW. It is common for people to be concerned about a losing their licence when charged with this offence, however, it is often the case that a disqualification period is a forgone conclusion and it becomes necessary to be realistic about the likely penalty to be imposed in addition to the disqualification period.
Although all High Range drink driving matters are considered serious, factors such as the blood-alcohol reading; the manner in which the offender drove; the offender's previous driving record and the amount of times the offender has previously been before a Court for a drink driving matter can increase the likelihood of a severe punishment, such as a term of imprisonment.
It is therefore important to obtain competent legal advice and representation when charged with drink driving to consider the prospects of defending the charge and/or taking all necessary steps to reduce the penalties that may be imposed.
If you have been charged with a High Range PCA offence, we invite you to contact us at your nearest Prime Lawyers office to speak to one of our experienced solicitors.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
Drive Under the Influence of Alcohol - DUI
Driving under the influence of alcohol, commonly referred to as DUI (NSW) is considered a major traffic offence. Unlike many other drink driving (such as PCA) offences, to prove a DUI offence, the police are not required to prove a blood-alcohol content or rely on a scientific device.
Like almost all drink driving offences, a conviction for a DUI offence means fines and automatic licence disqualification periods. It is therefore important to seek the advice of experienced traffic lawyer if charged with this type of offence.
The Law
Pursuant to section 112 of the Road Transport Act 2013, A person must not, while under the influence of alcohol:
(a) drive a vehicle, or
(b) occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or
(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)-occupy the seat in or on a motor vehicle next to a learner driver who is driving the vehicle.
Penalties
The penalties for a charge of DUI (NSW) or drive under the influence of alcohol are set out in the below table:
Offences | Maximum Fine | Disqualification | Minimum Interlock Period | Maximum Gaol | |
|
| Automatic | Minimum |
|
|
1st offence | $2,200 | 12 months | 6 months | - | 9 months |
Automatic | Maximum | ||||
2 or more | $3,300 | 6 months | 9 months | 24 months | 12 months |
It is also an offence if the person is the holder of an applicable driver's licence and, whilst under the influence of alcohol, occupies the seat of a vehicle next to a learner driver who is driving the vehicle.
The maximum penalty under these circumstances is a fine of $2,200, whether a first or second offence, and there is no term of imprisonment. The disqualification periods are the same as in the table.
Mandatory Interlock
Since February 2015, a Court must make a Mandatory Interlock order upon convicting someone for their "second or subsequent" Drive Under the Influence of Alcohol (DUI) offence. An Interlock order requires an initial period of disqualification for anywhere between 6 and 9 months. After that period, the offender will need to obtain an Interlock licence should they wish to return to the road. This licence is to be held for as long as the Court orders, which is at least for the minimum period listed in the above table.
Read here for more on Mandatory Interlock Orders.
Commentary
So what does it mean to be "under the influence of alcohol"? The legislation does not define the term and in fact, at law, it is a little ambiguous. To prove the offence, the Court needs to determine whether someone is under the influence of alcohol based on the surrounding circumstances and importantly, witness observations of the driver.
For example, police may give evidence that the person's breath smelt of intoxicating liquor, their eyes were blood shot, their speech was slurred and they were unsteady on their feet. The law allows people to give an opinion as to whether in their view someone was intoxicated or not, yet it must be based on some sort of observation.
The degree of intoxication that is required to make out the offence is not abundantly clear. It is accepted, however, that there must be some sort of impairment of the driver, however, the law does not require that the driver be impaired to any significant or substantial degree. It would be enough to find that the driver's mental or physical faculties are affected by alcohol to the point that they are no longer "normal".
It is important to note that in New South Wales, there is no requirement for the prosecution to prove that the driver's proper control of the vehicle was affected to find the offence proved, although this type of evidence could assist the Court in determining whether the driver was under the influence.
Whether someone is "under the influence" or not is based on opinion and is a finding of fact that needs to be made by the Court.
If we have other more specific drink driving matters, such as PCA (prescribed concentration of alcohol) offences, where the police rely on blood-alcohol readings obtained by scientific instruments, then why does the offence provision of driving under the influence of alcohol still exist? What sort of scenario would one typically be expected to be charged with driving under the influence of alcohol?
Police would typically prefer this charge where a driver is involved in an accident, there is some evidence that the driver may be intoxicated and the police are unable to obtain a blood-alcohol reading in accordance with legislative provisions that would allow the police to rely on the reading obtained. The offence is not as common as the other drink driving offences and is typically relied on by police when they are unable to prove a more specific offence, such as Mid Range PCA or High Range PCA, which require admissible evidence of the driver's blood-alcohol reading to be made out.
It is also important to note that, under certain
circumstances, the Court can accept evidence from witnesses other than police
officers as lay opinion. In fact, despite their position, police officers are
lay witnesses when it comes assessing someone’s sobriety and, like most people,
have to draw on life experience to form an opinion as to whether or not someone
is “under the influence”.
It must be borne in mind that being “under the influence” is an element of the offence and therefore, must still be proved beyond a reasonable doubt. There can be circumstances where prosecution evidence can fall just short of proving that a driver was under the influence, especially where there is no available evidence as to whether or not the driver had consumed alcohol at any time prior to driving.
Sometimes, where the police decide to just charge someone with driving under the influence rather than obtaining a blood-alcohol level and charging them with a more specific PCA drink driving offence, it can result in some unfairness. For some, when comparing the penalties for DUI against the other penalties for drink driving offences, it can mean a similar or more favourable outcome, should the person decide to plead "guilty". But where the unfairness may resultis if someone is assessed as being “under the influence” even when their blood alcohol level may well have been below the legal threshold for driving. In other words, the person may have given a reading of below 0.05 if they had been subjected to a breath analysis (for example, they had only consumed a small amount of alcohol) but still be assessed as being under the influence of alcohol by (police) witnesses. Of course, this would be a subjective assessment made a witness that the accused person would then need to defend.
Despite some unfairness that can present itself against a driver where police charge the driver with DUI rather than subject the driver to a breath analysis and obtain a blood-alcohol reading, it is also the case that if police do in fact obtain a breath analysis sample, they are then precluded from charging the driver with DUI. This allows protections for drivers against police subjecting someone to a breath analysis and then charging them with DUI should the analysis either return a reading below the threshold or a reading for a drink driving offence that is less serious than DUI. This is an often overlooked provision in the Road Transport legislation, by police, prosecutors and defence lawyers alike but can prove very important in cases where police prefer one charge to the other as a "back-up" or, where there are issues with the evidence and therefore, police decide to charge in the alternative. Quite simply, it cannot be done.
Refuse Breath Analysis
Most drink driving charges require evidence that a driver was intoxicated or had present in their blood a certain level of alcohol. However, there are some charges that do not require any proof of intoxication or blood alcohol content and even others where there is no proof that the person had consumed alcohol in the first place. The charge of Refuse Breath Analysis is one such charge. Our lawyers are experienced in representing people in all Courts for this type of offence.
The Law
Pursuant to the Road Transport Legislation, a person must not, when required to do so by a police officer, refuse or fail to submit to a breath analysis in accordance with the officer's directions.
Penalties
The penalties for Refuse or fail breath analysis are set out below:
Offences | Maximum Fine | Disqualification | Minimum Interlock Period | Maximum Gaol | |
|
| Automatic | Minimum |
|
|
1st offence | $3,300 | 3 years | 12 months | 24 months | 18 months |
Automatic | Maximum | ||||
2 or more | $5,500 | 9 months | 12 months | 48 months | 2 years |
Mandatory Interlock
In addition to disqualification periods, fines and any other form of punishment (such as imprisonment), the Court must also make a Mandatory Interlock Order for any offence of this kind, whether it is a first offence or second or subsequent alcohol-related major offence within a 5 year period.
Read our article on Mandatory Interlock Orders for more information.
Defences
Unlike most other drink driving charges, defending a charge of refuse breath analysis (or fail breath analysis) is not easy. There is a statutory defence to the charge (ie, a defence that is specified in the legislation) available, which is not easy to prove and further, may not always be in someone's best interests.
Pursuant to the Road Transport Act, it is a defence to this charge if the defendant can prove that he or she was unable on medical grounds to submit to the breath analysis. This defence generally requires expert evidence as to any condition that the defendant may suffer from that precludes them (or precluded them at the time) from submitting to an analysis. This becomes problematic, because even if the defendant is able to prove that the failure is due to a medical condition, they may later face a suspension from the RMS as a result of being medically unfit to drive, due to an inability to comply with a particular traffic law.
Outside of this statutory defence, despite what is often argued by police and often accepted by the Courts, there is still some (but very limited) room to defend the charge on other grounds.
If you need assistance with a charge of Refuse Breath Analysis, our experienced lawyers can help. Contact us at your nearest Prime Lawyers office to speak to one of our experts today.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
Mandatory Interlock
Mandatory Interlock Orders are made by Courts when sentencing offenders in certain circumstances for drink driving offences.
What are the effects of a Mandatory Interlock Order?
When a Mandatory Interlock Order is made, a driver receives a period of disqualification from driving or obtaining a driver's licence. The disqualification period is dependent on what type of drink driving offence the person is convicted of and whether it is a second or subsequent offence.
For offences where an Interlock Order is made, the driver must then obtain an Interlock licence and maintain that licence for a period of time. During the "Interlock Period", the driver is able to only drive a car fitted with the Interlock device and is required to pay for the device to be installed on a vehicle and continue to pay a regular maintenance fee for the duration of the Interlock period.
Should the driver not obtain an Interlock licence, the driver remains disqualified for a period of up to 5 years unless and until the Interlock licence is obtained and maintained for the duration of the Interlock period.
What is an "Interlock device"?
An Interlock device is an electronic device that is fitted to a vehicle and linked to the vehicle's ignition. Before starting the vehicle the driver is required to provide sample of his or her breath. The device then analyses the breath sample and should alcohol be detected, then the vehicle will not start. Even after successfully starting the vehicle, the device requires random samples to be given during the journey where again, a sample of the driver's breath is analysed for the presence of alcohol. Further, a photo is taken of the driver every time the driver provides a sample. The device logs and stores the information and it is therefore designed to ensure that drivers are not able to "cheat" the device by having a passenger provide the necessary breath sample, when prompted.
When is an Interlock Order made?
An Interlock order must be made where a driver has committed any high range drink driving offence (whether a first offence or otherwise) and any other drink driving offence that is considered a second or subsequent offence. The below table shows some of the offences for which an Interlock Order is made along with the disqualification periods and minimum Interlock periods. It must be remembered that a Court has the discretion to increase the Interlock period beyond the minimum.
Mandatory Disqualifications and Interlock Periods
|
Offences |
Disqualification |
Minimum Interlock Period |
|
|
Automatic |
Maximum |
||
|
2nd
Low Range, Novice Range or Special Range |
1 month |
3 months |
12 months |
|
2nd Mid Range or Drive
Under the Influence |
6 months |
9 months |
24 months |
|
1st High Range or Refuse Breath
Analysis |
9 months |
12 months |
48 months |
|
2nd High Range or Refuse Breath
Analysis |
9 months |
12 months |
48 months |
Are there exemptions?
At the time of sentencing, the starting position is that the Interlock Order is mandatory and therefore, must be made. However, if the offender can satisfy the Court that essentially, the offender does not own or have access to a vehicle, or the offender, due to a medical condition, will be unable to comply with the Interlock requirements, then the Court is to make an Interlock Exemption Order. If an exemption order is made, then the offender is then to be dealt with differently, where longer minimum disqualification periods are imposed and no Interlock order is made.
The above is an outline of how and when Mandatory Interlock orders are made and the effect thereof. You can find more information on the Mandatory Interlock scheme at the Roads and Maritime (RMS) website.
If you have been charged with a drink driving offence and require legal assistance, then we invite you to contact one of our experts at your nearest Prime Lawyers office.
Our offices are located at our Sydney, Parramatta, Chatswood, Sutherland and Wollongong offices.
Drink Driving Lawyers Sydney
Our Drink Driving Lawyers Sydney and NSW understand the need for certainty when it comes to legal fees. For that reason, we offer Fixed Fee DUI representation for all types of DUI matters listed in all Courts.
We are very experienced and knowledgeable Traffic Lawyers and we bring with that experience not only the ability to obtain exceptional results, but also the ability to run matters efficiently and cost-effectively without ever compromising our high level of application and service. Our experience and efficiency allows us to quote and guarantee a fixed fee for our services, so that you know that you are not only being represented by an expert, but at a fair and transparent cost.
The penalties for drink driving offences can impact considerably on people's livelihoods, as they include lengthy licence disqualifications and for the more serious offences, terms of imprisonment. It is for this reason that our Drink Driving Lawyers leave no stone unturned when preparing our matters.
In addition to our Sydney CBD office, we have several other NSW offices in convenient locations, servicing some of the major Courts in NSW, particularly for DUI matters. This means that we are able to provide our fixed fee service to a larger section of the community.
Our traffic lawyers have special expertise in all types of serious traffic offences and are not, like many other lawyers, general practitioners who have just a cursory understanding of DUI laws and who "dabble" in traffic law. The traffic law is a very complex area of the law and it is therefore important to engage the services of someone who has a proper understanding and knowledge of relevant traffic law legislation, rules of evidence and sentencing principles to maximise your chances of obtaining the best result. With drink driving penalties being so harsh, it is important to obtain the services of an expert.
We are known for working hard to ensure that all our clients are given the best chance of obtaining a favourable outcome, including defending charges that other lawyers would be less inclined to defend; whether due to lack of knowledge and ability or due to the lack of desire to take on such a difficult task. (Read about just one of our examples of a successful defence to a drink driving charge)
If you have been charged with a drink driving offence and require legal assistance, our experienced lawyers can help. We will advise you on your prospects of defending the charge and if a defence is not available, we will work diligently to prepare your case and obtain the best possible result on sentence.
Call us today to speak to one of our lawyers and obtain a Fixed Fee quote.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
