The Law and Penalties for Mid-Range Drink Driving in NSW

 

New South Wales Police did almost 5 million road side breath tests just last year.

New drink driving laws were announced earlier this year, effectively introducing on-the-spot fines of $561 (penalty notice) and immediate 3-month licence suspensions to anyone caught drink driving with a low-range concentration of alcohol in the breath or blood.

A further change was the introduction of imposing an alcohol interlock device order for anyone who commits a mid-range drink driving offence as a first offence (where he/she has no prior major offence within the last 5-years from the date of committing the new offence).

About three-years leading up to June last year, more than half of 1st time low-range drink drivers received a non-conviction by the Courts, says the Roads Minister Ms. Pavey.

Some Drink Driving Statistics

Around 1 in 4 who drink alcohol believe they are still ‘drunk’ the following morning, yet over ¼ of those still drive according to research by NRMA.

The NRMA research revealed significant issues and a ‘reckless disregard by drivers for themselves and others’, including the following:

  • 59% of people aged under twenty-fives who got behind the wheel thought they were still intoxicated the next morning, while 54% drove notwithstanding.
  • Two-thirds of those who drove believing they were over the legal limit from consuming alcohol held the belief that it was ok to do this due to work or other planned commitments the next morning.
  • About thirty-two percent of those who got behind the wheel with the belief that they were over the limit excused their own behaviour on the basis that there was no other form of transportation.
  • Ninety-three percent of people who died from getting behind the wheel were males, with the most of them being under the age of forty.

While there has actually been a reduction of deaths and injuries on our roads over the last ten years, alcohol was the main contributor for fifty-five deaths in two thousand and seventeen, and fifty-two deaths earlier this year.

Dimitra Vlahomitros, NRMA safety expert, has been reported saying that, “NRMA members rank drink-driving as their 2nd biggest road safety fear… the only way to reduce your blood alcohol limit is time but only sixty percent of respondents believed this to be the case.. instead many said they are or drank water or coffee to counter the effect of the alcohol.”

Melinda Pavey of the NSW Roads, Maritime and Freight Minister said, “the 0.05 limit has been in place in NSW for almost thirty-eight years. (The measures are) about driving home to the community that there are no more excuses… The message to the community is powerful. Have a Plan B. Because if you drink-drive, you will be caught, and you will lose your licence.”

The Law and Penalties for Mid-Range Drink Driving Charges in NSW

It is a criminal offence to drive (or while not driving, but ‘trying to put a vehicle in motion’) on a NSW road with an alcohol concentration of between 0.08 but less than 0.15. This is known as mid-range drink driving in NSW pursuant to section 110(4) of the Road Transport Act 2013 (NSW).

‘trying to put a vehicle in motion’ includes sitting in the driver seat, or passenger seat with the intent to drive the vehicle where your conduct is such that it is categorised as more than merely preparatory to driving the vehicle. Whether it is considered as this by a court will depend on the circumstances. (Burchell v Goodall [1994] WASC 491).

An example in favour of doing acts more than merely preparatory to driving include sitting in the driver sear with the seat belt fastened with the engine running.

An example of a situation where a person is likely not to be considered as trying to put the vehicle in motion includes, being asleep behind the wheel while in the passenger seat with the engine on.

Anyone guilty of a mid-range drink driving offence in NSW will face the below penalties.

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

Max Imprisonment Max Fine
If no drink driving conviction in last 5 years  

9 months

 

 

$2,200

If drink driving conviction in last 5 years              1 yr $3,300

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

Compulsory Disqualification Period prior to Interlock Period Starting Interlock Period Where You Must Drive with Interlock Device Installed in Car Disqualification Period If Interlock Program Not Applied to You
If you have no previous drink driving convictions in last 5 years  

Not applicable

 

Not applicable

 

 

 

Not Applicable

 

Automatic: 1 yrs

 

Min: 6 months

If you have a previous drink driving conviction in last 5 years    Min: 6 months

 

Max: 9 months

4 yrs Automatic: 3 yrs

 

Min: 1 yr

Defences to Mid-Range Drink Driving Charge in NSW

Your mid-range drink driving charge will be dismissed on a finding of not guilty if any one of the following defences to this apply to your case:

  1. The vehicle engine was off and you were not ‘driving’ or you were not on a NSW road.
  2. Honest and reasonable mistake of fact defence: Where you honestly believed that you were not under the influence of alcohol in a set of circumstances that the courts consider a reasonable belief to have held at the time. The reasonableness of the belief will depend on the circumstances of the case. An outline of this defence is expressed in the leading High Court case of He Kaw Teh v R [1985] HCA 43.
  3. The safe home rule: Where the breath test was conducted by police on your home or property, including driveway. This defence does not apply if the breath test was conducted on you while you were on someone else’s property or home.
  4. The two-hour rule: Where the police conduct a breath test on you two-hours after the time of the alleged driving. If police end up doing a breath test or analysis on you 2-hours after the time of the alleged driving, then any evidence obtained to prove that you were driving with a mid-range reading will generally be inadmissible as evidence (kicked out of court).
  5. Pharmacologist report: Your charge will be dismissed if a pharmacologist report reveals that at the time of driving you were probably under the mid-range reading (below 0.08). This can apply in circumstances you drove moments before consuming some alcoholic drinks, where police pull you over for an RBT, and you give a positive reading to a road side breath test, at which point enough time (say 20-30minutes) passes before you are required to then provide a breath analysis back at the police station.

Getting a Section 10 Dismissal to Avoid Conviction and Disqualification of Licence

How to avoid a licence disqualification and criminal conviction even after pleading guilty to drink driving is outlined in our previous blog on ‘What is a Section 10 Non-Conviction and How to Get it In Court?’.

In maximising your chances at getting a section 10 dismissal or Conditional Release Order without Conviction (‘CRO’), it is important to gather some powerfully compelling character reference letters for drink driving. click here for character reference for court examples.

How to Get an Exemption from an Interlock Order if convicted for Mid-Range Drink Driving

Section 212(3) of the Road Transport Act 2013 (NSW) allows the Court to ‘excuse’ or ‘exempt’ you from the otherwise automatic order of participation in the alcohol interlock device if:

  • You are unable to access a motor vehicle in order to install the interlock device; or
  • Due to a medical condition preventing you from using the breath sample in order to initiate the operation of the interlock device, and where it isn’t reasonably practicable to change the device for you to be able to operate it.

You cannot be ‘exempt’ from an alcohol interlock device order simply because the owner of the vehicle doesn’t allow it to be installed, or because you’re unable to afford having it installed, or where you’re prevented from driving a vehicle in the course of employment if the order is made.

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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