Drink Driving Laws & Penalties NSW: Everything You Need to Know (New Laws 2019)

 

The Transport and Roads Minister has taken a zero-tolerance approach to drink driving in NSW.

Drink driving laws in NSW are constantly changing and becoming more complex over time. Receiving a drink driving conviction these days can result in losing your driver licence, job which in turn have a significant impact on your loved ones who rely on you for these important aspects of life.

For those reasons, in this guide we’ll summaries everything you need to know about drink driving laws and penalties in NSW.

This guide should answer most, if not all questions around drink driving laws in NSW.

This will also help if you wish to represent yourself in court for a drink driving offence.

 

What is Drink Driving?

Drink driving is when a person drives a motor vehicle with the threshold amount of BAC. It can also include driving while under the influence of alcohol, even if there is no specified BAC. This can apply if you are influenced however small by the consumption of alcohol while driving.

 

What are the Types of Drink Driving?

There are 6 main types of drink driving charges. This includes, high range drink driving, mid range drink driving, low range drink driving, DUI, special and novice range drink driving.

Each have their own penalties. These include driver licence disqualification periods, fines, imprisonment and a criminal record (criminal conviction).

 

What does PCA stand for in drink driving cases?

This means Prescribed Concentration of Alcohol. It’s a crime to drive a vehicle with the threshold amount of PCA, also known as BAC.

A criminal conviction against your name for a drink driving offence can only be avoided if the Magistrate or Judge in court is convinced to impose a non-conviction type of penalty as a sentence on you, which is either section 10 dismissal or a Conditional Release Order without conviction.

 

What is the Legal Limit for Drink Driving?

A common question that gets asked is “what is the legal limit for drink driving in Australia?”.

As there are 6 main drink driving offences, each one has it’s own threshold limit.

An unrestricted licence holder is not allowed to drive with a BAC reading of 0.05g or more of concentration of alcohol.

A provisional, learner or interlock driver licence holder isn’t allowed to drive with any concentration of alcohol.

In summary, below is an outline list of the most serious to least serious drink driving offences in NSW with their BAC threshold limits, also reflected by Transport for NSW:

  1. High-range drink driving: BAC reading of 0.15g or more.
  2. Mid-range drink driving: BAC reading between 0.08g and 0.149g.
  3. DUI or driving under the influence: Does not require a BAC reading, nor evidence that alcohol impaired driving. This offence is committed simply if there is evidence you were under the influence from alcohol while behind the wheel.
  4. Low-range drink driving: BAC reading of between 0.05g and 0.079g.
  5. Special-range drink driving: BAC reading og between 0.02g and 0.049g (only applies to ‘L’ or ‘P’ platers or interlock device licence holders).
  6. Novice-range drink driving: BAC reading of anything over 0 and 0.019g (only applies to ‘L’ or ‘P’ platers or interlock device licence holders).

Examples of how long it can actually take to get the alcohol out of your system:

  1. 18-year old Rado Ando holds a Provisional 1 (P1) licence in NSW. If he commenced drinking at 10pm and ended up consuming 6 mixers (about 9 standard drinks) over a 4 hour period till about 2am, his BAC is about 0.24g. It would take over 16-hours for Bob to bring his BAC back down to zero. This means, that if Bob has to work the next morning, he will be over the limit at least until about 6pm that next day.
  2. 19-year old Steven Apples has a P2 licence. He starts consuming alcohol  at 6pm and ends up having 10 schooners (full strength beer equivalent of 15 standard drinks) over a 6-hour period. By midnight, he has a BAC of 0.17g. It will take him about 11 hours for his BAC to get back to zero. This means, he won’t be able to drive until about noon the next day.

 

How Much Can You Drink Before Driving?

‘How much can I drink before driving’, is very different to, ‘how much can I drink when driving’.

It is illegal to drink alcohol while driving. This can amount to a DUI offence which doesn’t require a specific blood alcohol concentration percentage (BAC), nor is the prosecution required to get an expert to prove the amount of BAC to prove any driving impairment.

For DUI charges (section 112(1)(a) Road Transports Act 2013 (NSW)), the court may hear evidence of any bystander’s (or police officer’s) observation(s) as to the extent an accused person was under the influence to prove the charge, namely that he/she was under the influence while driving.

The case of DPP v Ridley [2015] NSWSC  and DPP (NSW) v Kirby [2017] NSWSC reflects these very points.

It’s generally recommended not to drive on the same day you consume alcohol.

So, what’s the drinking limit in NSW or how much can you drink and drive in Australia?

Alcohol stays in the body for varying periods of time depending on the body type, gender, age, period(s) of time when alcohol was consumed, whether it was consumed on an empty stomach or full stomach, and the type of alcohol consumed.

The BAC starts to increase after consuming alcohol, and often continues to rise for up to 2-hours after you stop drinking.

It’s therefore extremely risky to put a number on how many drinks you can have before driving.

As a general guideline on how many standard drinks you can have to drive in NSW, while still attempt to remain within the legal drinking limit in NSW, is outlined by the RACQ on how to stay under the legal limit as follows:

  • For Males: Up of 2 standard drinks in the first hour, and then 1 standard drink each hour thereafter.
  • For Females: Up of 1 standard drink in the first hour, and then 1 standard drink each hour thereafter.

It is a well known fact that alcohol impairs decision making, and having that one extra drink can result in serious trouble when deciding to drink.

The BAC reflects the amount of alcohol in you. Generally, 10g of alcohol is considered a standard drink.

A champagne glass with 11.5% alcohol, a 375ml stubby or can of full strength beer with 4.9% alcohol generally amounts to 1.5 standard drinks.

Examples of a standard drink includes (approximately):

  • 375ml of Beer with 3.5% alcohol.
  • 285ml Beer with 4.9% alcohol.
  • 30ml Spirit with 40% alcohol.
  • 100ml wine with 12% alcohol.

The RACQ have provided the above guide to help people understand how you may know if you’re over the limit.

This is because the risk of being involved in an accident or crashing increases significantly after consuming alcohol.

The best thing to do is to avoid driving if you intend to consume alcohol.

Having a plan B travel plan is important- this may be by being familiar with the bus or train timetable, Uber, taxi, or getting a lift from someone who is sober to drive.

Alternatively, simply opt out and say ‘no’ to that extra drink.

 

What are Your Options in Court?

What to say in court for drink driving? When appearing in court for a drink driving charge, you can either plead ‘guilty’ or plead ‘not guilty’ to the offence.

If you plead ‘guilty’ to a drink driving offence in court, the Judge or Magistrate will proceed to sentence. This involves determining an appropriate penalty to impose on you after hearing any further evidence you wish to produce to get a lenient outcome.

If the Judge or Magistrate imposes a section 10 dismissal or non-conviction penalty on you as a sentence, you will not be disqualified and you will also remain conviction-free for the offence.

If you plead ‘not guilty’ to a drink driving offence in court, the Judge or Magistrate will adjourn your case to another court date for hearing. On the hearing day, the court will decide on whether you’re ‘guilty’ or ‘not guilty’ after hearing evidence from both sides.

Where the court finds you to be ‘not guilty’, your charge will be dismissed, putting an end to your case without any penalty.

Where the court finds you to be ‘guilty’, the Judge or Magistrate will decide on an appropriate penalty to impose during sentencing.

If you want to know more about what is a section 10 bond for drink driving, how to get away with a drink driving charge, or what court do you go to for drink driving, and more, it’s recommended to speak to a drink driving lawyer in Sydney for guidance and advice.

 

How Does Drink Driving Affect Your Licence?

If a Court convicts you for drink driving, it will result in a disqualification of your driver licence.

The next important question is, ‘how long do you lose your licence for drink driving?’. This depends on the kind of drink driving offence committed, how you prepare your case and the circumstances of your offence.

 

What is the Penalty for Drink Driving?

What are the consequences of drink driving and how long until a drink driving conviction is spent?

Generally, a conviction is ‘spent’ if 10-years have lapsed since the recording of the conviction, provided there has been no further convictions for an offence punishable by prison. You will then not be required to disclose it. (section 8 Criminal Records Act 1991 (NSW)).

The penalties, consequences or punishment for drink driving in NSW varies depending on the type of drink driving charge you face, the BAC reading, your traffic record, whether you have any prior drink driving or traffic offences, and the objective and subjective features of your case.

What are the objective features of a drink driving offence? Objective features here, is when the sentencing Judge or Magistrate looks into factors such as the reason you drove while intoxicated, the number of people in the vehicle with you at the time, the distance you were travelling while drunk, the extent of your BAC reading, and whether there was any unusual driving that caused police to breath test you at the time (i.e. accident, swerving, running through red traffic light or breaking any other traffic rules).

What are the subjective features of a drink driving offence? Subjective features here, is when the sentencing Judge or Magistrate determines your penalty based on features such as, your prospects of rehabilitation including your mental health at the time, whether your mental condition contributed to you drinking to that extent, your treatment and progress, the impact of a conviction on your job, income and family dependents who rely on your income and ability to drive.

Subjective features also include, your age, expressions of any remorse, insight and acknowledgment of wrongdoing, so that the Court can judge whether or not you’re likely to re-offend.

Partaking and completing an accredited traffic offenders program for a drink driving offence can significantly help in building a strong subjective feature of a drink driving sentence.

Subjective features can also be improved by preparing compelling good character letters for drink driving from certain relevant referees outlining the main points of your case.

The sentencing Court (usually a Judge or Magistrate) will consider the above features before then determining which one of the following types of drink driving penalties to impose on you during sentence:

  1. Section 10 dismissal (non-conviction); or
  2. Conditional Release Order with or without conviction; or
  3. Community Correction Order with conviction; or
  4. Intensive Correction Order with conviction; or
  5. Full-time imprisonment with conviction.

When a court imposes a penalty that carries a conviction, it will also result in a licence disqualification period, with a criminal conviction.

Below is an outline that answers much of the common questions asked around ‘what is the penalty for drink driving?’, ‘how much is a drink driving fine?’ and ‘how long will I lose my licence for drink driving?‘.

 

What are the High-Range Drink Driving Penalties?

If you have a high-range BAC reading of 0.15g or more while driving, you will face court with the following possible maximum penalties unless you get sentenced in court under a section 10 dismissal or Conditional Release Order without conviction:

 

Max Fine and Imprisonment Penalties for High-Range Drink Driving Offences in NSW

First or Second Offence Imprisonment Fine Criminal Conviction
If it’s your ‘First Offence’ 18-months $3,300 Yes
If it’s your ‘Second or Subsequent Offence’ 24 months $5,500 Yes

 

Driver Licence Disqualification Periods for High-Range Drink Driving Offences in NSW

First or Second Offence Period of Compulsory Disqualification Minimum Interlock Period Disqualification period if you’re exempt from Interlock Program or if interlock program doesn’t apply
 
If it’s your ‘First Offence’
Minimum 6 months or Maximum 9 months 2 years Automatic 3 years or minimum 1 year
 

If it’s your ‘Second or Subsequent Offence’

 

Minimum 9 months or maximum 1 year 4 years Automatic 5 years or minimum 2 years

 

What is the High-Range Drink Driving Guideline Judgement?

The current law in NSW requires Courts to have regard to a guide to assist the Magistrate or Judge to impose an appropriate sentence across all kinds of high-range drink driving offences.

This is known as the high-range drink driving guideline judgment which all Magistrates and Judges will be aware of.

This guideline judgment is summarised in the below table for your convenience.

High-Range Drink Driving Guideline Judgement Type of Drink Driving Offence Realistic Range of Punishment
 

If this is your ‘first offence’

 

  • You drove to avoid inconvenience, or you believed you were not that affected by alcohol.
  • You were detected randomly for a random breath test. You were not detected due to the manner of driving.
  • You have a good traffic record, and you’re of prior good character.
  • A loss of licence will significantly inconvenience you.
  • There will be little to no risk of you re-offending.
 

  • s10 would rarely apply
  • automatic disqualification of 3 years will apply unless good reasons to reduce to 1 year
  • conviction with a good behaviour bond will be more appropriate
 

If this is your ‘second or subsequent offence’

 

  • You drove to avoid inconvenience, or you believed that you were not alcohol affected to that extent.
  • You were not detected from the manner of your driving. You were detected at random for a random breath test.
  • You have a good traffic record, and you are of prior good character.
  • You will suffer significant inconvenience if you were to lose your licence.
  • There is either little to no risk of you re-offending.
  • Conviction with community service order would be more appropriate
 

If this is your ‘second or subsequent offence’

  • You drove to avoid inconvenience, or you believed you were not affected by alcohol to that extent.
  • You were not detected due to the manner of your driving. You were detected at random for a random breath test.
  • You have a good traffic record, and you’re a person of prior good character.
  • A loss of licence will cause you significant inconvenience.
  • There is little to no risk of you re-offending.
  • Conviction with a community service order, or a more serious punishment would be appropriate
 

If this is your ‘first offence’

  • Your reading was significantly above 0.15.
  • You drove erratic or aggressively.
  • Your vehicle was involved in a collision.
  • You were driving competitively or you were showing off.
  • you drove a long distance, or you intended to do this.
  • You were in the vehicle with other passenger(s).
  • Conviction with a punishment of community service order, or a more serious punishment would be appropriate
 

If this is your ‘second or subsequent offence’

  • Your alcohol reading was significantly above 0.15.
  • You were driving erratic or aggressively.
  • Your vehicle was involved in a collision.
  • You were driving competitively or you were showing off.
  • You were travelling a long distance, or you intended to do so.
  • You were in the vehicle with other passenger(s).
 

  • A punishment of at least suspended sentence, intensive corrections order, home detention or full-time prison would be appropriate.
 

If you have a previous high-range drink driving conviction in last 5 years

 

  • Your alcohol reading was significantly above 0.15.
  • You were driving erratic or aggressively.
  • Your vehicle was involved in a collision.
  • You were showing off or driving competitively.
  • You were travelling a long distance or you intended to do so.
  • There was another passenger(s) in the vehicle.
 

  • Full-time prison would be appropriate

The above guideline judgement is used as a guide by Magistrates and Judges in order for them to decide on an appropriate penalty when sentencing an offender.

Every case is different and your drink driving case may well have some compelling or unusual features about it that can convince a court to impose a lenient sentence, or a sentence that allows you to walk away conviction-free without the loss of your licence.

 

What are the Mid-Range Drink Driving Penalties?

If you have a mid-range BAC reading at the time of driving (0.08 but less than 0.15) then, unless the court imposes a section 10 dismissal or Conditional Release Order without conviction sentence, you will face the following possible maximum penalties.

 

Max Fine and Imprisonment Penalties for Mid-Range Drink Driving Offences in NSW

First or Second Offence Imprisonment Fine Criminal Conviction
 

If it’s your ‘First Offence’

 

9-months $2,200 Yes
 

If it’s your ‘Second or Subsequent Offence’

 

12 months $3,300 Yes

 

Driver Licence Disqualification Periods for Mid-Range Drink Driving Offences in NSW

First or Second Offence Period of Compulsory Disqualification Minimum Interlock Period Disqualification period if you’re exempt from Interlock Program or if interlock program doesn’t apply
 

If it’s your ‘First Offence’

Minimum 3 months or Maximum 6 months 1 year Automatic 1 year or minimum 6 months
 
If it’s your ‘Second or Subsequent Offence’
 
Minimum 6 months or maximum 9 months 2 years Automatic 3 years or minimum 1 year

 

What are the DUI (Driving Under the Influence) Penalties?

If you were under the influence of alcohol or drugs at the time of driving (even if without proof of the extent of your impairment), you will face the following penalties in court, unless the court imposes a non-conviction sentence on you (s10 dismissal or non-conviction Conditional Release Order):

 

Max Fine and Imprisonment Penalties for DUI or Driving Under the Influence Drink Driving Offences in NSW

First or Second Offence Imprisonment Fine Criminal Conviction
 

If it’s your ‘First Offence’

 

18-months $3,300 Yes
 

If it’s your ‘Second or Subsequent Offence’

 

24 months $5,500 Yes

 

Driver Licence Disqualification Periods for DUI or Driving Under the Influence Drink Driving Offences in NSW

First or Second Offence Period of Compulsory Disqualification Minimum Interlock Period Disqualification period if you’re exempt from Interlock Program or if interlock program doesn’t apply
 
If it’s your ‘First Offence’
Minimum 6 months or Maximum 9 months 2 year Automatic 3 years or minimum 1 year
 

If it’s your ‘Second or Subsequent Offence’

 

Minimum 9 months or maximum 1 year 4 years Automatic 5 years or minimum 2 years

 

What is the Low-range, Novice-range & Special-range Drink Driving Penalties?

The below outlines the penalties for those who fall within the threshold BAC levels of the lesser serious type of drink driving offences in NSW.

For example, the ‘L’ or  ‘P’ plate alcohol limit in NSW is a BAC of more than ‘0’. Unrestricted or full licence holder alcohol limit in NSW is a BAC of 0.05g or more.

If you’re a first-time low-range, novice-range or special-range drink driver, you will face a $561 on-the-spot fine, in addition to an immediate 3-month suspension of your driver licence in NSW (section 224 Road Transport Act 2013 (NSW)).

The benefits of the on-the-spot fine include:

  1. You won’t be required to attend court to face a Magistrate; and
  2. You won’t receive a criminal conviction as a result of paying this fine.

However, the disadvantages of this include:

  1. Your driver licence will be immediately suspended by police; and
  2. You’ll be required to pay the fine.

If you wish to avoid the 3-month immediate suspension period and fine, you can choose 1 of the 2 below options:

  1. Court-elect the on-the-spot fine: You will then be required to appear in court to plead ‘guilty’ or ‘not guilty’ to the low-range drink driving charge. You will avoid the licence suspension and fine if the Magistrate, after hearing both sides of the case, decides you’re ‘not guilty’ or imposes a non-conviction sentence after you plead guilty (s10 or CRO); and/or
  2. Elect to appeal the police suspension: You will then be required to attend court. If ‘exceptional circumstances’ to justify lifting or varying the suspension can be shown in court, the Magistrate will lift the suspension period or reduce it.

If this is your ‘second or subsequent’ low-range, novice-range, or special-range drink driving offence, or if you court-elect any one of these offences as a first-time offender, you will be required to appear before a Local Court Magistrate.

You will then face the following maximum penalties in court (except if the Magistrate or Judge imposes a non-conviction sentence for it):

 

Max Fine and Imprisonment Penalties for Low-Range, Novice-Range & Special-Range Drink Driving Offences in NSW

First or Second Offence Imprisonment Fine Criminal Conviction
 

If it’s your ‘First Offence’

 

No prison $2,200 Yes
 

If it’s your ‘Second or Subsequent Offence’

 

No prison $3,300 Yes

 

Driver Licence Disqualification Periods for Low-Range, Novice-Range & Special-Range Drink Driving Offences in NSW

First or Second Offence Period of Compulsory Disqualification Minimum Interlock Period Disqualification period if you’re exempt from Interlock Program or if interlock program doesn’t apply
 

If it’s your ‘First Offence’

Interlock doesn’t apply Interlock doesn’t apply Automatic 6 months or minimum 3 months
 

If it’s your ‘Second or Subsequent Offence’

 

Minimum 1 month or maximum 3 months 1 year Automatic 1 year or minimum 6 months

 

Who do the special-range drink driving laws apply to?

Special-range drink driving laws and penalties apply to the following:

  • Learner licence holder
  • Provisional licence holder
  • Interlock driver licence holder
  • A person who has had his/her licence refused, cancelled, suspended.
  • A person has had his/her learner, provisional or interlock licence expired.
  • A person has had his/her driver licence (other than a learner, provisional or interlock licence holder) expired for over 6-months.
  • A person who has been disqualified from driving.
  • A person who’s never obtained a relevant driver licence.
  • the vehicle is being driven for reward, hire, in course of business, or as a public passenger vehicle.
  • The vehicle is being driver as a taxi or hire vehicle for a passenger service.
  • The vehicle is a coach or motor vehicle with a GVM of more than 13.9 tonnes.
  • The vehicle is being used with a trailer, with a GCM of more than 13.9 tonnes in combination of the motor vehicle and trailer combined).
  • The vehicle or trailer being towed carries dangerous goods requiring a sign displayed on it under the laws, or the vehicle carries any radioactive substances.

A full licence or unrestricted drivers licence holder is permitted to drive with an alcohol reading of anything below 0.05.

Therefore, special-range drink driving laws and penalties don’t apply to unrestricted or full licence holders in NSW.

 

Who do the novice-range drink driving laws apply to?

The novice-range drink driving laws and penalties apply to the following:

  • Learner licence holder
  • Provisional licence holder
  • Interlock driver licence holder
  • Person who has had any of the above 3 classes of licence refused
  • Person who has had his/her learner, provisional or interlock driver licence suspended, cancelled, disqualified or where it has expired.
  • A person who is not allowed to drive in NSW because he/she has never obtained an applicable drivers licence.

An unrestricted or full-driver licence holder is allowed to drive a motor vehicle with an alcohol reading of anything below 0.05.

Novice-range drink driving penalties do not apply to full-licence holders in NSW.

 

What is a Drink Driving Course?

What is a drink driving course? Participating and completing an accredited NSW traffic offenders intervention program (TOP) by the time your case is listed in court can significantly improve your sentence outcome to avoid a criminal conviction and keep your licence.

TOP is an education program that aims to inform drivers as to the dangers of driving in dangerous and irresponsible ways.

The drink driving course and what to expect? It also teaches methods on how to avoid such behaviour, and informs motorists on the penalties of committing these driving offences in NSW.

It allows the Judge or Magistrate to reduce your penalty by accepting that you have greater insight into your offence and are unlikely to re-offend.

The TOP you entoll into must be an approved program under Part 8 Criminal Procedure Regulation 2017 (NSW). If the program is not approved, then the Court is not required to take it into account in your favour of your sentence.

How long does a drink driving course take? In the past, a TOP course would take up to 8 weeks to complete through PCYC which included 2 hour lectures a week.

PCYC continue to provide this program which is also very beneficial for a drink driving sentence, to have the penalty reduced. It involves 14-hours covering various topics and sessions.

Each component is required to be passed involving various sessions, including the responsibilities of holding a NSW Driver Licence, factors that are related to road crashes and the enforcement strategies used by NSW Police and RMS to mitigate the road trauma, the accident scene, alcohol & drugs, crash consequences, the legal system, driving facts, victims of road trauma and a final reflection.

the TOP also has a number of presenters presenting, including highway patrol officer, ambulance officer, alcohol & drug expert, a victim of road accident, traffic lawyer, road safety professional and victim groups.

If you wish to complete the TOP drink driving course in a shorter time, then one of the best TOP drink driving programs to enroll into is the TORP Traffic Offenders Rehabilitation Program, which can be completed over 2 days involving an online session completed at home plus an on-site sessions completed at one of their venues across NSW.

How much does a drink driving rehabilitation course cost? The PCYC TOP program cost is $150 who have up to 65 locations it is hosted at across NSW.

This 1 to 2 days TORP Traffic Offenders Rehabilitation Program course is approved, and costs $170.

The shorter TORP course takes only about 90 to 120 minutes to complete online. You can enroll in their Sydney CBD, Parramatta, Newcastle, Manly or Wollongong venue. (Places get filled up quickly, so we suggest you enroll as soon as possible).

The Court will only take an approved drink driving course (Traffic Offenders Program) into account in your favour during sentencing if you end up completing the course successfully.

For more information on enrolling into the TORP shorter course, contact 0426 994 769. It is a highly beneficial course in preparation for a drink driving sentence.

 

What are your options after receiving an on-the-spot fine for low-range, special-range or novice-range drink driving?

After receiving an on-the-spot fine for a first-time low-range drink driving offence (or a novice or special-range drink driving), you have 1 of 2 options:

  1. Pay the fine:This will put an end to the case without a criminal record and without the need to attend court. However, you will incur demerit points and a 3-months licence suspension. At the expiry of that 3-months, you can re-apply for a licence and continue driving; or
  2. ‘Court elect’ the infringement notice, and do not pay the fine: Instead of paying the fine, you may elect to go to court (as an option on the back of the infringement notice). This will require you to attend the Local Court when you will then be required to either plead not guilty or guilty to the low-range, special range or novice range drink driving charge:
    • A plea of not guilty will cause your case to be adjourned to another day in court for a hearing when the Magistrate will determine whether you are guilty or not guilty after hearing both sides of evidence. If you’re found not guilty, the charge will get dismissed. If you’re found guilty, the Magistrate will determine the most appropriate sentence to impose on you.  
    • A guilty plea will cause the Magistrate in court to proceed to a sentence. This is when the Magistrate will decide on the most appropriate penalty to impose on you after hearing any further evidence you wish to produce for the sentence.

The Court can then impose any one of the following types of penalties on sentence for the drink driving offence:

  1. Section 10 dismissal or Conditional Release Order without a criminal record: any one of these penalties will allow you to walk out of court without a criminal record, without a licence disqualification and without a fine; or
  2. Conditional Release Order or fine with a criminal record: any one of these penalties will result in a criminal record, fine, and licence disqualification.

 

What are your options after receiving an immediate licence suspension from police for drink driving?

If you receive an immediate police licence suspension, you will continue to be suspended (for the 3-months) unless you either:

  1. Successfully appeal the police suspension in the Local Court (Police Suspension); or
  2. Through court-electing the penalty, the Local Court determines your case before the 3-months suspension expires.

If successful in appealing the police suspension in court, the Court will remove the police suspension period, allowing you to continue driving after you’re issued with a new licence.

The Magistrate will only remove the police suspension period if convinced that there are ‘exceptional circumstances’ to justify it.

To do this, you will need to first lodge a police suspension appeal in the Local Court. This is a separate application in court to appeal the police’s decision to suspend your licence.

You will have within 28-days from the date you were issued with the police suspension notice to file this appeal. You can only lodge this appeal if the charge that caused the immediate police suspension to arise hasn’t yet been heard and determined in court (section 268(6) Road Transport Act 2013 (NSW)).

 

What is considered a ‘second or subsequent’ offence?

A drink driving offence will be considered a ‘second or subsequent offence’ if in the last 5-years from the date the court convicts you for your current offence, you have been convicted of a ‘major offence’ (including drink driving).

If you have not been convicted of a ‘major offence’ in the last 5-years, your current drink driving offence will be considered a ‘first offence’.

A ‘major offence’ includes any one of the following offences:

  • Any drink driving offence.
  • Driving negligently causing grievous bodily harm or death.
  • Driving with an illicit drug in your blood, urine or oral fluid.
  • Furious, reckless or driving at a speed dangerous.
  • Menacing driving.
  • Failing or refusing to provide or submit to a test or analysis.
  • Altering the alcohol or drug concentration in your body.

A low-range, novice-range or special-range drink-driving offence will still be considered a ‘second or subsequent offence’ if:

  • You committed a drink driving offence, dealt with by way of an on-the-spot fine, within 5-years from the date the court convicts you for your current drink driving offence.

 

Can you be exempt from participating in the interlock program?

If you’re subject to the mandatory interlock program, the Court can exempt you from participating in the interlock program under section 212 Road Transport Act 2013 (NSW) if:

  1. You do not have access to a motor vehicle to install the device in. This applies if you share the use of a car with someone else who also uses the car but is unable to use the device due to a medical condition; or
  2. Due to a medical condition you’re unable to provide a sufficient sample into the interlock device; or
  3. If this is your ‘first offence’ for mid-range drink driving, the interlock program would cause you severe hardship in all your circumstances.

Otherwise, you will not be exempt from participating in the interlock program if:

  • You’re unable to afford the installation & maintenance cost for the interlock device.
  • You will be unable to use the vehicle for work if the interlock device is installed into it.
  • The owner of the vehicle refuses to allow you to install the interlock device.

 

Defences to Mid-Range, High-Range & Other Drink Driving Charges 

A successful drink driving defence will result in the drink driving charge being dismissed by the Court or withdrawn beforehand through negotiating with police.

Negotiations commence from the moment a letter is drafted and sent to the Officer in Charge outlining all the weaknesses of their evidence. This document is called ‘legal representations’.

It’s vital that the ‘legal representation’ letter is carefully and effectively drafted in a way best suited to your drink driving case.

A successful defence will result in you being found ‘not guilty’ in court after the Magistrate hears all the evidence in court.

The following are some common drink driving defences:

The At-Home Defence This applies if you’re breath tested or drug tested on your own private property, such as driveway or car park to your unit.
The Two-Hour Defence This applies if your breath tested or drug tested at a time when two-hours have passed since you were driving a motor vehicle.
The Pharmacologist Defence This applies if an expert report called a ‘pharmacologist report’ says that at the time of driving you were below the BAC threshold of the drink driving charge you face.
The Technical Defence This applies if at time the police say you drove a motor vehicle, the vehicle under the law was not ‘in motion’ and if you weren’t trying to put it in motion.
The Mistake of Fact Defence This applies if at the time of driving, you honestly and reasonably believed that in a set of circumstances (even though you were mistaken) you were not intoxicated from alcohol (or drugs). i.e. if your drink was spiked.

 

What factors do the courts look at when determining a penalty for a drink driving offence?

In addition to the factors already outlined on this page, the court will also consider the following factors when determining the appropriate sentence to impose for a drink driving offence:

  • Your traffic record is important to consider. You can obtain an updated record directly from the RMS.
  • Your age and health.
  • If you drove in an unusual manner attracting police attention or you were simply pulled over for a random breath test without any unusual driving.
  • Any compelling reason why you drove.
  • The extent of your BAC reading.
  • Whether you are suffering a mental illness.
  • How long the journey was that you intended to travel or did in fact travel whilst under the influence.
  • Whether there was a collision, damage or any injuries caused to anyone involved, including yourself.
  • Whether there were any passengers other than you in the vehicle at the time of driving.
  • Whether your job, income and any dependants will be affected if you were to be imprisoned, disqualified or convicted for drink driving.

 

Will your disqualification period be back-dated by the court?

If the court convicts you for a drink driving offence, you will be disqualified from driving for the specified period outlined on this page.

However, any period of time that you’ve already been suspended for leading up to the date of your drink driving conviction in court will be taken into account towards the court ordered disqualification period.

This effectively back-dates the disqualification period imposed by the court.

 

How Do you Reduce Your Drink Driving Charge?

How to get off a drink driving charge? It is possible to walk out of court without a criminal record and without a disqualification of your driver licence even after pleading guilty to a drink driving offence, but only if you end up getting a section 10 dismissal or Conditional Release Order without conviction from the Magistrate or Judge.

 

Section 10 Non-Conviction Laws For Drink Driving in NSW

What is a Section 10 for a Drink Driving Offence?

A section 10 drink driving dismissal is what the Judge or Magistrate can impose after pleading guilty or if you’re found guilty of a drink driving offence in NSW.

A section 10 allows you to walk away without a criminal conviction, and it allows you to keep your driver licence- in other words you end up avoiding a licence disqualification.

A Court can do this if the Magistrate or Judge is convinced under section 10 Crimes (Sentencing Procedure) Act 1999 (NSW):

  • It will be expedient to discharge you without a conviction; or
  • It will be inexpedient to punish you further, other than nominal punishment.

While no one can ever guarantee to get you this kind of outcome in court, there are many things you can do in preparing and presenting your case to maximise your chances of getting this kind of outcome for a drink driving offence.

A section 10 can be either a section 10 dismissal as outlined above, or it may be a Conditional Release Order without conviction (CRO).

A CRO order without conviction has the same effect, as it leaves a drink driving offender without a criminal conviction, and without a licence disqualification (so that he/she can continue to drive).

The CRO without conviction also imposes a good behaviour bond period as a condition, meaning that the offender will be required to be of good behaviour and not commit any further offences during that time-frame (usually 2-years).

This was previously known as a section 10 bond.

Some of the conditions of a CRO without conviction on a drink driving offender can includes, standard conditions (not to further offences and to appear in court if called upon to do so), in addition to additional conditions, which may include:

  • Participating in a rehabilitation program if it can address a relevant concern such as mental health of alcohol addiction.
  • Prohibition from drinking alcohol or other drugs.
  • Prohibition from associating with a certain person(s).
  • Prohibition from going to a particular place, or
  • Condition to comply with supervision.

The CRO without conviction doesn’t let a Court impose a community service order, home detention or curfews (unlike the other types of penalties available).

Every case should be catered to its particular situation when formulating the best strategy in preparing and presenting the case in the right way in court. Experienced drink driving lawyers can best guide you on this.

The best way to maximise your chances of getting a section 10 sentence for drink driving varies and depends on the particular case.

Generally, to be put in the best position to get a section 10, it is important to prepare some compelling good character letters pointing out the main issues in your case, including your remorse, insight and acknowledgment of wrongdoing.

By pleading guilty early enough, the Court will be required to reduce your sentence by 25%, which brings you steps closer to getting a section 10.

If you suffer from mental health, this may be highly relevant to highlight to the Magistrate for your sentence. This is because it can significantly increase your chances at getting a s10.

The best way to highlight this, is to get a compelling psychologist report from an experience psychologist or psychiatrist expert.

Where you have a strong need for a driver licence, or you have family depends who rely on you to either drive or to earn an income, then it’s important to get a letter from those people outlining these points.

Where a criminal conviction will result in you losing your job, then it’s important to produce evidence of this to the Court.

You may produce this evidence by using your employment contract, which may express this point, or obtain a letter from your employer, or someone higher up who works there, outlining this.

For more details click here for an outline on ‘how to avoid a criminal conviction after pleading guilty in court’.

 

When is the Court not allowed to give you a section 10 for a drink driving offence?

The only situation that a Court is prohibited from giving a drink driving offender a section 10 dismissal or Conditional Release Order without conviction is if the offender has already received a section 10 dismissal or Conditional Release Order without conviction for any one of the following types of offences within the previous 5-years (from the date the court determines your current drink driving offence):

  • Drink driving
  • Drug driving (driving with illicit drug in your oral fluid, blood or urine)
  • Driving or attempting to drive while under the influence of alcohol or drug(s)
  • Menacing driving
  • Failing to stop and assist after impact causing injury or Failing to stop and assist after vehicle impact causing grievous bodily harm or death under section 52AB Crimes Act 1900 (NSW)
  • Refusing or failing to submit to an alcohol or drug test
  • Altering concentration or amount of alcohol or drugs in your breath or blood
  • Negligent driving causing grievous bodily harm or death
  • Furious driving, reckless driving or driving at a speed or manner dangerous to public

This is outlined is section 203 Road Transport Act 2013 (NSW).

 

What are the Police Powers under our Drink Driving Laws in NSW?

When can Police Require you to Stop your Car to Conduct a Random Breath Test (RBT)?

The police are allowed to stop and conduct a random breath test on you if you are driving a vehicle on a road. This is reflected in Division 2 of Schedule 3 of the Road Transport Act.

 

What if I am Seated in the Car, But Not Driving the Car?

Police are also allowed to stop you for the purposes of carrying out a random breath test if you are on a road, seated in the driver seat, where you are found to be trying to “put the vehicle in motion” (where you’re not actually driving the car).

 

What Does “Trying to Put the Vehicle in Motion” Mean?

You cannot be guilty of driving a car with an alcohol concentration above the legal limit if you are seated in the driver seat (on a road), but stationary with the engine on.

The case of Burchell v Goodall [1994] WASC 491 says that the prosecution must prove more- they must prove you firstly intended to drive the car, and secondly, you did act(s) that the court believes were more than merely preparatory to the driving of the car.

This is where the court will look into the circumstances of the case.

In some cases there may be a strong inference that you did attempt to put the car in motion where, for example:

  • You had the key in the ignition
  • You had your seat belt on
  • You told police that you intended to drive when you got into the car

In other cases, you will likely be not guilty where:

  • You’re drunk
  • You get into your car to sleep
  • The engine is running to have the heater on
  • You have no seat belt on
  • You tell the police you were in your car to sleep

Every case depends on its own facts and the court will look into those proven facts.

 

What Happens After You Get Stopped for an RBT?

In those circumstances, police are allowed to then require you to provide a breath test- usually by talking into or blowing into a device at the road side.

The breath test device done at the road side is used to provide an indication of the concentration of alcohol in your breath or blood.

This is a preliminary assessment, which, if it indicates that you may be over the limit, the police can then immediately arrest you (without any warrant).

After arresting you, the police will then take you (either to a police station or a mobile bus nearby) where you will be detained to provide a breath analysis (usually by blowing into a device). This test will reveal any concentration of alcohol in your breath or blood.

 

What if you fail to Stop After Police Have Signalled you to Stop on the Road?

Failing to stop your vehicle after you have been signalled by police to stop for purposes of an RBT carries a maximum penalty of $1,100 fine.

 

What if You Refuse or Fail to Give a Breath Test at the Road Side?

The preliminary assessment known as the breath test is done at the road side. It’s different to the breath analysis which is done later if the preliminary assessment indicates that your concentration of alcohol is above the legal limit.

The preliminary breath test done on the road side can generally not be used as evidence to prove you committed the offence of driving with a particular concentration of alcohol in your breath or blood.

If you fail after attempting to give a breath test, or where you refuse to give a breath test at the road side (preliminary test), then you can expect the police to arrest you without a warrant, and take you to the police station or RBT bus stop for a breath analysis test- which will give an accurate reading of the concentration of alcohol in your breath or blood.

The police can then use as much force as necessary to take you to the location of the breath analysis machine.

Refusing to give or failing to give a breath test at the road side doesn’t carry a disqualification period, but it does carry a maximum penalty of a $1,100 fine.

 

What if you Refuse or Fail to Give a Breath Analysis at the Police Station?

Failing or refusing to provide the police with a breath analysis at the police station or RBT bus carries the following penalties:

Where in the last 5 years, you have no other major offence (fail or refuse to give breath analysis, or drink driving offence):

  • A penalty of up to $3,300 fine or prison of up to 18 months (or both).
  • An automatic disqualification of 3 years. The court can reduce this to a minimum of 12 months.

Where in the last 5 years, you have a major offence (fail or refuse to give breath analysis, or drink driving offence):

  • A penalty of up to $5,500 fine or 2 years prison (or both).
  • An automatic disqualification of 5 years. The court can reduce this to a minimum of 2 years.

If you manage to convince the Court to give you a non-conviction (an available option as a punishment by the court) then you will not receive any of the above penalties. It also means you do not get a criminal record.

 

What if You’re Unable to Blow into the Breath Analysis Device to Give a Sample?

If you’re physically unable to blow into the breath analysis device after being arrested, then the police officer has the power to require you to provide a sample of your blood to determine the concentration of alcohol in your blood.

 

What Happens if you Refuse or Fail to provide a Blood Sample?

If you refuse to comply with police directions to provide a blood sample (after you have been physically unable to give a breath analysis earlier), the police can use such force that may be necessary to take you to the hospital for this purpose.

If you have been physically unable to give a breath analysis earlier, police can direct you to provide a blood sample to determine the concentration of alcohol in your blood.

If you refuse to comply with police directions, police will be allowed to use such force that may be necessary to physically take you to the hospital to give a blood sample.

Where in the last 5 years, you have no other major offence (fail or refuse to submit to a blood sample, or drink driving offence):

  • A penalty of up to $3,300 fine, or prison of up to 18 months.
  • An automatic disqualification period of 3 years. The court can reduce this to a minimum of 12 months.

Where in the last 5 years, you have a major offence (fail or refuse to submit to a blood sample, or drink driving offence):

  • A penalty of up to $5,500 fine, or prison of up to 2 years.
  • An automatic disqualification period of 5 years. The court can reduce this to a minimum of 2 years.

 

What Happens After the Breath Analysis Test is Completed?

After the breath analysis test is complete, the police will then give you a statement reflecting details of the reading you gave, including the day and time of the breath analysis test.

If the breath analysis provides a reading above the legal limit of alcohol, you can expect to then receive the charge papers by police. The charge papers will include the statement of the reading you gave, your court attendance notice showing your court date and drink driving charge. It usually also includes a statement of police facts.

 

When Can You Refuse to Give Police a Random Breath Test?

You can refuse to provide police a breath test at the road side, you can refuse to provide them with a breath analysis (after the road side breath test) or a blood sample, if any of the following circumstances apply to you:

  • You are at your home (we will discuss this in detail in our next blog)
  • Where it involves a breath test or analysis: you can refuse where it’s been more than 2 hours since you were stopped by police for an RBT.
  • Where it involves a blood sample test: you can refuse where it’s been more than 4 hours since you were stopped by police for an RBT.
  • You can refuse to give a sample of breath or blood if it appears to the police that it would be dangerous to your medical condition (due to injuries you have sustained).
  • You can refuse to give a sample of breath or blood if an authorised sample taker, such as a doctor or nurse, objects to taking a sample due to concerns that it would be dangerous to your health.
  • Police cannot obtain a sample where you’ve been admitted to hospital for medical treatment, except where the doctor doesn’t object on the basis that it wouldn’t be prejudicial to your proper care or treatment.

 

Drink Driving Statistics in NSW, Australia

Here we outline how many deaths are caused by drink driving and why is drink driving dangerous.

Transport for NSW says that drink driving’s a factor in around 1 in every 7 crashed in NSW, resulting in someone losing a life.

The Transport for NSW website states, that out of the drink driving offenders who have been killed in a 5-year period between 2013 and 2017, 93% were men and 67% were female aged below 40.

Did you know that drink driving is the number 1 contributing reason in about thirty percent of fatal accidents in Australia?

In fact, more than one in four riders/drivers who die on our roads have a BAC over the legal drink driving limit.

This is despite the fact that BAC drink driving limits have been in place for more than 25-years.

To demonstrate the magnitude of the prevalence of this offence, a Queensland police survey revealed that from the 3.65 million breath tests it conducted, more than 22,000 people were caught drink driving. This provides a 0.6% drink driving rate just in Queensland.

By having your alcohol level BAC over 0.05g, the risk of a casualty crash increases by two fold. In addition, the risk of a fatal crash rises even more than this where the BAC is over 0.05g.

How does alcohol work in your body? It’s a form of drug, which has an impact mentally and physically. This is because alcohol’s a depressant, which if used excessively can impair your cognitive functions which has an impact on your judgment, reaction and ability to remember.

Then how does alcohol impact on your ability to drive? keeping the above in mind, being intoxicated from alcohol:

  1. Slows down your ability to react, which is extremely concerning, because your ability to react in time could effect someone’s life or your life on the road.
  2. Can impair your vision and hearing ability, which effects your ability to avoid dangers on the road.
  3. Can impair your ability to notice others on the road, and
  4. Reduces your ability to multi task while driving.

 

Need a Drink Driving Lawyer in Sydney or Anywhere Else in NSW?

Contact our leading Sydney drink driving lawyers who attend all courts to arrange a free first appointment now.

We have drink driving lawyers in Parramatta, Sydney CBD, Wollongong, Newcastle and 4 other convenient locations.

Contact us 24/7 on (02) 8606 2218 to get a quote for a fixed fee today.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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