Drink Driving in NSW

The Offence

Exceed Prescribed Content of Alcohol s.110

The latest New South Wales legislation that deals with drink driving in NSW is the Road Transport Act 2013. There are a number of PCA offences under the Act, depending on your test reading, and also what type of licence you hold at the time of the offence.

Novice Range PCA

Novice range PCA is a drink driving charge that is issued on a person when they deliver a Blood Alcohol Concentration of above 0.00 but below 0.020 (0.00 to 0.019), and are subject to a zero blood alcohol content requirement, such as P1 or P2 drivers.

The specific law reads as follows from the Road Transport Act Act 2013:

“Section 110 (1) – Offence-novice range prescribed concentration of alcohol:           

A novice driver must not, while there is present in his or her breath or blood the novice range prescribed concentration of alcohol:           

(a) drive the motor vehicle, or           

(b) occupy the driving seat of the motor vehicle and attempt to put the motor vehicle in motion.”

Special Range PCA

Special range PCA is issued on a person when they deliver a BAC of 0.020 or higher but below 0.050 (0.020 to 0.049), who is subject to a zero alcohol limit or special alcohol limit, including P1 and P2 drivers. The special range limit will also apply to bus drivers and taxi drivers whilst they are in operation of their work vehicle.

The specific law reads as follows from the Road Transport Act 2013:

“Section 110 (2) – Offence-special range prescribed concentration of alcohol:           

A person must not, while there is present in his or her breath or blood the special range prescribed concentration of alcohol:           

(a) if the person is a special category driver in respect of a motor vehicle drive the motor vehicle, or           

(b) if the person is a special category driver in respect of a motor vehicle occupy the driving seat of a motor vehicle and    attempt to put the motor vehicle in motion, or           

(c) if the person is a special category supervisor in respect of a motor vehicle and the holder of a driver licence (other than a provisional licence or a learner licence) – occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.”

Low Range PCA

Low Range Drink Driving is where you drive a motor vehicle with a blood alcohol concentration between 0.050 and 0.079.

The specific law reads as follows from the Road Transport Act 2013:

“Section 110 (3) – Offence-low range prescribed concentration of alcohol:           

A person must not, while there is present in his or her 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 a driver licence (other than a provisional licence or a learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.”

Mid Range PCA

Mid Range Drink Driving is where you drive a motor vehicle with a blood alcohol concentration between 0.080 and 0.149.

If the court convicts you of ‘mid range drink driving’, it must disqualify you from driving. However, if you are ‘guilty’ and the court deals with you under ‘section 10’ (no conviction), you will not be disqualified.

The specific law reads as follows from the Road Transport Act 2013:

“Section 110 (4) – Offence-middle range prescribed concentration of alcohol:           

A person must not, while there is present in his or her breath or blood the middle 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 a driver licence (other than a provisional licence or a learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.”

High Range PCA

High Range PCA is where a person drives a motor vehicle with a BAC of at least 0.150.

The specific law reads as follows from the Road Transport Act 2013:

“Section 110 (5) – Offence-high range prescribed concentration of alcohol:           

A person must not, while there is present in his or her 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 a driver licence (other than a provisional licence or a learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.”

In 2004, the NSW Court of Criminal Appeal handed-down a ‘guideline judgement’ on high range pca which essentially told the lower courts to treat the offence seriously, and impose consistent sentences.

Since that time, the penalties imposed for High Range PCA have increased significantly. If you have been charged with a High Range PCA you should seek legal advice and representation immediately.

Driving Under the Influence (DUI) s.112

Driving under the influence (DUI) is different to a standard drink-driving PCA offence, in that a DUI charge does not require police to prove that you were affected by a specific amount of alcohol – only that you were affected by some amount of alcohol or drugs.

This “affection” is generally based on police observations about your driving, actions or demeanour which may suggest that you were under the influence of drugs or alcohol, without submitting to a breath test. Other surrounding circumstances and factors are taken in to account such as the person’s breath smelling of intoxicating alcohol, glazed or red eyes, slurred speech, swaying or unsteady on feet, or being involved in a car accident.

The specific law reads as follows from the Road Transport Act 2013:

“Section 112 – Use or attempted use of a vehicle under the influence of alcohol or any other drug:           

(1) A person must not, while under the influence of alcohol or any other drug:                       

(a) drive a vehicle, or                       

(b) occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or                       

(c) being the holder of a driver licence (other than a provisional licence or a learner licence), occupy the seat in or on a motor vehicle next to a holder of a learner licence who is driving the motor vehicle.           

(2) If a person is charged with an offence under subsection (1):                       

(a) the information may allege the person was under the influence of more than one drug and is not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the information, and                       

(b) the offence is proved if the court is satisfied beyond reasonable doubt that the defendant was under the influence of:                                   

(i) a drug described in the information, or                                   

(ii) a combination of drugs any one or more of which was or were described in the information.”

The Penalty

If you are convicted of drink driving penalties in a NSW court you will:

  • Automatically lose your drivers licence;
  • Receive a maximum fine of between $1,100 and $5,500 depending on the prescribed concentration of alcohol (PCA) you are charged with and whether this is your first or subsequent offence;
  • Leave Court with a criminal record; and
  • Potentially even face a gaol term

The specific penalties for drink driving depend on the blood alcohol reading you recorded, and whether it is a first or subsequent offence. If you are not granted the benefit of a section 10 (see below) there are mandatory minimum periods of licence loss according to your B.A.C. You will also be subject to an alcohol interlock following the completion of your suspension period. This is mandatory and can only be avoided through an application for an interlock exemption, which the court has to be satisfied would cause extreme hardship if imposed.

The following tables summarise the expected penalties for the various PCA readings:

1ST MAJOR OFFENCE – DUI AND DRINK DRIVING PENALTIES
OffenceMaximum FineMaximum JailAutomatic disqualificationMinimum disqualification
NoviceRange PCA (0.00 –0.019)$1,100Nil6 months3 months
Special Range PCA (0.020 – 0.049)$1,100Nil6 months3 months
Low Range PCA (0.050 – 0.079)$1,100Nil6 months3 months
Middle Range PCA (0.080 – 0.149)$2,2009 months12 months6 months
High Range PCA (over 0.150)$3,30018 months3 years12 months
Driving Under the Influence(DUI)$2,2009 months12 months6 months
Refuse Breath Test$1,100Nil6 monthsNil
Refuse Breath Analysis$3,30018 months3 years12 months
Wilfully Alter Blood Concentration$3,30018 months3 years12 months
 2ND MAJOR OFFENCE – DRINK DRIVING& DUI PENALTIES
OffenceMaximum FineMaximum JailAutomatic disqualificationMinimum disqualification
Novice Range PCA (0.00 – 0.019)$2,200Nil12 months6 months
Special Range PCA (0.020 – 0.049)$2,200Nil12 months6 months
Low Range PCA (0.050 – 0.079)$2,200Nil12 months6 months
Middle Range PCA (0.080-0.149)$3,30012 months3 years12 months
High Range PCA (over 0.150)$5,5002 years5 years2 years
Driving Under the Influence (DUI)$3,30012 months3 years12 months
Refuse Breath Test$1,100Nil2 years2 years
Refuse Breath Analysis$5,5002 years5 years2 years
Wilfully Alter Blood Concentration$5,5002 years5 years2 years

In summary, you may expect:

  • Low, Novice or Special Range PCA: minimum 3-months
  • Mid Range PCA: min. 6-9 months
  • High Range PCA: min. 12 months
  • Drive Under Influence: min. 12 months

Note that if electing to submit an interlock exemption request and you are successful, the Magistrate is required to marginally extend the period of your licence suspension in lieu of making the interlock order.

New Legislation Changes for Low-Range Drink Drivers

following new legislation that came into effect on 20 May 2019, low-range drink drivers should be aware of the following changes:

  • NSW Police can now immediately suspend the licence of any driver caught drink driving on NSW roads, including lower range and first time offenders.
  • In the case of a first time, low, novice or special range offence, a driver’s licence may be suspended for a period of 3 months, coupled with an on-the‐spot fine of $572 (Level 7 penalty notice – value from 1 July 2019).
  • If you receive an immediate licence suspension, you are required to hand your licence to Police, and are not permitted to drive. You may need to make alternative arrangements to get home from the roadside or police station.
  • If you have received a penalty notice and immediate suspension for a drink‐driving offence, you can elect to have the matter determined in court and appeal your suspension.

Full details regarding penalties for the drink driving offences and relative readings can be found on the Roads and Maritime Services website.

Can I Defend the Charge?

A full defence is where you choose to plead not guilty to the charges being laid, to either prove you did not commit the alleged offence or you were not responsible for them in any way. Certain full defences to various driving offences include Duress, Necessity, Emergency, Issue of Identification, Factual Dispute and Honest and Reasonable Mistake (as to the status of your driver’s licence or the presence of alcohol in your drink). Note that it is not a defence of Honest and Reasonable Mistake to simply say you thought you were fine or would be under the limit.

A “partial” defence may be where you submit subjective material or circumstances during a guilty plea which provide either some explanation for the offence, or the associated behaviour, and sometimes will be considered in mitigation of the penalty to be imposed.

In NSW, partial defences (other than seeking a section 10) do not exist for any drink or drug driving charges, as the Magistrates’ are required to impose mandatory minimum disqualification periods if found guilty of the offence and if a section 10 is not appropriate. Subjective circumstances may assist in the amount of the fine given however and also whether the Magistrate does not impose more than the minimum disqualification. and whether or not the Magistrate chooses to impose a conviction or not.

Exceed PCA

Drink driving charges are difficult to defend but not impossible. Certain available full defences (including new and novel defences) include Duress, Necessity, Emergency, Factual Dispute regarding the alleged reading, or most notably procedural disputes and technical errors, both with the procedure at the time and afterwards with the documentation compliance.

In certain circumstances there may be a defence if you have a diagnosed medical condition or take certain medications which may have an interaction or interference with the breath alcohol reading obtained by the device or the medications unknowing effect on your level of intoxication.

A Section 10 (or Section 9 Conditional Release Order) is the only partial defence available where you are pleading guilty (as it is not a full defence where you plead not guilty to the charges) but it can be sought where you have mitigating circumstances and your offence satisfies certain conditions. These conditions include having a reading below 0.15 and not having had an offence or a section 10 granted in the last five years. Note that although eligibility for a section 10 is listed as below 0.15, it is extremely rare to be granted a section 10 for readings above 0.10. With extremely severe circumstances, it is not impossible however.

If successful in obtaining a section 10, you are found “guilty” of the offence but the matter is either dismissed or dealt with by way of a good behaviour bond for a period of time. Notably, you do not receive any licence loss, penalty or conviction, provided you do not come before the court for anything other matter for the duration of the bond.

It is very important that you seek legal advice regarding your offence if you have any questions or concerns about whether you might have a defence to your charge of drink driving