New Drink Driving Laws in NSW

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By Jimmy Singh.

The average court penalty for first time drink drivers in 2017 was $482.

NSW Roads Minister, Melina Pavey said, that around 6000 people in NSW are charged with first time mid-range drink driving, and 55 people in 2017 died from drink driving.

The police can give you a penalty notice for most traffic offences attracting specified fines depending on the offence. A penalty notice doesn’t require you to attend Court to face a Magistrate unless you elect to go to court to dispute it or to ask the court to impose a lenient penalty, including a non-conviction s10 or conditional release order.

Currently in NSW a penalty notice cannot be given for drink driving charges. This means, if a police officer suspects that you were drink driving, he/she must give you a court attendance notice requiring you to attend court and face a Magistrate. A Magistrate then has discretion to impose an appropriate sentence dependant on your individual case and circumstances in order to achieve a fair outcome.

In NSW, the current maximum penalty a Magistrate can impose in Court for a low-range drink driving offence in the case of a first-time offender is up to $1,100 and/or licence disqualification from a minimum of 3 or automatic 6 months.

The maximum penalty for a first-time offender of mid-range drink driving is currently a fine of up to $2,200 and/or a term of imprisonment of up to 9 months, and an automatic licence disqualification period of 12-months or the discretionary minimum disqualification of 6-months.

A first-time or a ‘second or subsequent’ offender of mid-range drink driving will now be required to participate in the interlock program unless the Magistrate is convinced to give you a section 10 dismissal (non-conviction), or a Conditional Release Order without conviction- in which case you avoid a criminal conviction, disqualification period and fine even after pleading guilty.

Where the interlock program applies, an offender will be required to install and pass the interlock device into his/her vehicle. The vehicle will not start unless the offender blows into the device with a nil alcohol reading- the cost and maintenance of which is at the cost of the offender.

Table Of Contents

Proposed New Drink Driving Laws
The Current Penalties for Low-Range Drink Driving & Mid Range Drink Driving NSW
Can I Be Exempt from Participating in the Interlock Program?
Can I Keep My Licence and Avoid a Conviction After Pleading Guilty to Drink Driving?
Can I Plead Guilty and Still Avoid a Conviction with Section 10/Conditional Release Order More than Once?
How Many Demerit Points Do You Have in NSW?
What are the Penalties for Using Up All of Your Demerit Points?

Proposed New Drink Driving Laws

The proposed new laws by the Roads Minister Ms. Pavey will change the penalties in the following ways:

The police will be given the power to issue penalty notices on the spot for low-range drink driving offences of $561, and a 3-month licence suspension.
On choosing to not pay the fine and electing to go to court for the low-range charge, you will also be subjected to double the maximum fine that a Magistrate in the Local Court can currently impose for low range drink driving offences. This means you will be subject to a maximum fine of up to $2,200 as a first-time offender by the Magistrate. Technically the maximum penalty will result in it becoming harder for people to get a s10 non-conviction (soon to be conditional release orders).
For mid-range drink driving offences, where it’s your first-time offence, you will be subjected to having the interlock device installed into your car at your cost.

Ms. Pavey argues, that the power to police to issue on-the-spot fines for low range drink driving offenders will reduce the pressure on the court resources due to a reduction in cases, and a better deterrent method than requiring offenders to attend court. Her reason for this is because the 3 years preceding the end of June 2017, over half of first time low-range drink driving offenders received no fines and no criminal convictions.

On the other hand, not only are these new proposed laws harsher than the current penalties on drink driving in NSW, and although more than half of offenders received no fines in court giving perhaps greater cause to generate more revenue by on-the-spot fines, significantly- one would think that the deterrent effect of having to appear in court, face a Magistrate in front of a gallery of people in the court room, and the opportunity to reflect on one’s behaviour leading up to the court date would be a far more powerful deterrent factor than being issued an on-the-spot fine.

Going to court for drink driving on a plea of guilty still allows the offender to provide an explanation for his/her behaviour. It also allows the offender to outline any compelling and sometimes exceptional features of a case concerning the extent of a need for a licence and impact of a criminal record. Other factors would also be relevant, such as the offenders traffic record and contrition, but knowing all of this information may justify a Magistrate in exercising discretion to not impose a disqualification and not impose a conviction. A discretion the current new proposed laws on low range drink driving appear to be taking away from the Judiciary.

The proposed on-the-spot fines appear to completely by-pass this Judicial process of discretion.

For information on how to draft character letters to prepare your own case well, see character reference for court traffic offence template.

For details on traffic offender programs, see traffic offenders rehabilitation program.

For specific personalised advice on a drink driving case we recommend speaking to a drink driving lawyer.

The Current Penalties for Low-Range Drink Driving & Mid Range Drink Driving NSW

You will be guilty of low range drink driving in NSW for driving a vehicle with a concentration of 0.05 grams or more, but less than 0.08 grams of alcohol in 210 litres of breath (or 100 millilitres of blood).

Mid-range drink driving in NSW attracts harsher penalties where you drive a vehicle with a concentration of 0.08 grams or more, but less than 0.15 grams of alcohol in 210 litres of breath (or 100 millilitres of blood).

Current Fines for Low-Range Drink Driving and Mid-Range Drink Driving

Low-Range Drink Driving: The current penalties for low range drink driving attracts no term of imprisonment, but it does attract a fine of up to $1,100 for a first-time offence, or a fine of up to $2,200 for an offender who is a ‘second or subsequent’ offender. This is reflected in section 110(3) of the Road Transport Act 2013 (NSW).

Mid-Range Drink Driving: The current maximum penalties on mid-range drink driving in NSW for a first-time offender attracts a term of imprisonment of up to 9 months and/or $2,200 fine. The penalties are higher if this is your second or subsequent drink driving offence- with a term of imprisonment of up to 1 year and/or $3,300 fine. This is reflected in section 110(4) of the Road Transport Act 2013 (NSW).

It will be considered a second or subsequent offence if your current drink driving offence is the second or more occasion that you committed a drink driving offence within the last 5 years. Technically it will count as a second or subsequent offence where within the last 5 years of your current drink driving conviction at court you were convicted of another drink driving offence.

Current Licence Disqualifications for Low Range Drink Driving & Mid-Range Drink Driving

Low Range Drink Driving: If you don’t have any other drink driving convictions within the last 5 years of your current drink driving offence, then a conviction for your current low range drink driving offence in NSW will result in an automatic licence disqualification period of 6 months with the option for a Court to reduce it to a minimum of 3 months.

If you have been convicted of a previous drink driving offence or ‘major offence’ within the last 5-years from your current low-range drink driving conviction, you will be considered a ‘second or subsequent’ offender, which requires you to participate in the interlock program- carrying a minimum disqualification period of 1 month or a maximum of 3 months, with a further 12-months interlock participation period during which time you may drive with the interlock device installed into your vehicle.

Mid-Range Drink Driving: If you have no other drink driving conviction in the last five years of your current mid-range drink driving offence, then a conviction for your current mid-range drink driving offence in NSW will require you to participate in the interlock device program as a first-time offender. This means that you will be disqualified from driving for either the minimum 3-months or maximum 6-months, with a 12-month interlock participation period thereafter allowing you to drive during that interlock participation period.

The driver licence disqualification period is longer for second or subsequent drink driving offenders. This means, that if you were previously convicted of a drink driving offence within the last 5 years of your current mid-range drink driving offence, then you will also be required to participate in the interlock program. This means that you will be disqualified from driving for either the minimum 6 months or maximum 9-months, with a requirement to participate in the interlock program with an interlock device installed into your vehicle for 24-months thereafter.

This means, that for 2 years, you can only drive with an interlock device installed into your car where the car won’t start unless you pass the interlock device test every time you try to start the car.

Currently, the interlock program doesn’t apply for first time low range drink driving offenders in NSW.

An interlock device is a device connected to a vehicle’s ignition. The interlock device will only allow the car to start if the driver passes the breath test fitted on the device.

Driver Licence Disqualification Periods if You’re Exempt from the Interlock Program

You can apply to be exempt from being required to participate in the interlock program.

As a second time low range drink driving offender, if you’re exempt from having to participate in an interlock program then you will face an automatic disqualification period of 12 months, with an option for the Court to reduce this to a minimum of 6 months disqualification.

As a second time mid-range drink driving offender, if you’re exempt from participating in the interlock program, then you will face an automatic disqualification period of 3 years, with an option for the Court to reduce this to a minimum of 1 year.

Can I Be Exempt from Participating in the Interlock Program?

You can only be exempted by the Court from participating in the interlock program if the following criteria are satisfied:

You don’t have access to a vehicle and therefore cannot install an interlock device. An example of this is where you share the one car with another family member who also needs to use the vehicle but isn’t able to provide a sufficient sample to the interlock device due to a medical condition; or
You have a medical condition preventing you from being able to provide a sufficient sample to the interlock device.

Simply not being able to afford paying for the installation and maintenance of the interlock device isn’t enough reasons to be exempt from participating in the interlock program. Nor is it a good enough reason to be exempt from this simply because the installation of an interlock device will result in being unable to use the vehicle in your employment.

Similarly, it isn’t a good enough reason to be exempt from the interlock program just because the registered owner of a vehicle you have access to use doesn’t consent to having an interlock device installed.

This is all reflected in section 212 of the Road Transport Act 2013 (NSW).

Can I Keep My Licence and Avoid a Conviction After Pleading Guilty to Drink Driving?

The above penalties don’t apply if you convince a Court not to impose a conviction on your low range drink driving offence even after pleading guilty. If the court imposes no conviction for your drink driving offence, it will impose an order under section 10 which will now be replaced with a Conditional Release Order (CRO). This will mean you do not get a licence disqualification, you will not get a fine, and you will also not incur any demerit points.

For more information on how to best prepare your case for a section 10 or conditional release order, see section 10 bond drink driving.

Can I Plead Guilty and Still Avoid a Conviction with Section 10/Conditional Release Order More than Once?

Under section 203 of the Road Transport Act 2013 (NSW), you can’t get a non-conviction outcome from the Court (known as a s10 or conditional release order) if you previously received a section 10 non-conviction result for a drink driving offence within the last 5 years from the time the court now determines your drink driving case.

How Many Demerit Points Do You Have in NSW?

The demerit points scheme in NSW is designed to encourage responsible and safe driving on our roads.

Each class of driver in NSW starts off with zero demerit points.

As demerit points are incurred from traffic offences you get closer to using up your allocated set number of demerit points. Once you exceed your set number of demerit points, you will face penalties.

“L” or “P1” Licence holders can incur up to 3 demerit points without facing any penalties.

“P2” licence holders can incur up to 6 demerit points without facing any penalties.

Unrestricted licence holders can incur up to 12 demerit points without facing any penalties.

Unrestricted professional drivers can incur up to 13 demerit points without facing any penalties.

What are the Penalties for Using Up All of Your Demerit Points?

A learner or provisional licence holder can have his/her licence suspended or cancelled by the RMS for 3 months if the threshold number of demerit points within a 3-year period are accumulated. This means that a learner or “P1” driver can be suspended for 3 months if 4 or more demerit points are accumulated, and a “P2” driver can be suspended for 3 months if 7 or more demerit points are accumulated.

Un-restricted and professional licence holders will face the following licence suspension periods based on the following number of accumulated demerit points within a 3-year period:

13 to 15 demerit points: 3 months licence suspension to commence at least 28 days after the notice is given.
14 to 15 demerit points for professional drivers: 3 months licence suspension to commence at least 28 days from the date of receiving the notice of suspension.
16 to 19 demerit points: 4 months license suspension to commence at least 28 days after the notice is given.
20 or more demerit points: 5 months license suspension to commence at least 28 days after the notice is given.

Our leading team of criminal and traffic lawyers specialise in drink driving cases. Call our 24/7 hotline if you wish to discuss this further. We have experienced drink driving lawyers in Parramatta, Newcastle, Penrith and numerous other locations in NSW.

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Published on 14/08/2018