The Law on Drink Driving in NSW

There are 5 general types of drink driving offences in NSW:

  • High Range Drink Driving: where your alcohol reading is 0.15 or more in every 210 litres of breath, or 100 millilitres of blood.
  • Mid Range Drink Driving: where your alcohol reading is at least 0.08, but less than 0.15.
  • Low Range Drink Driving: where your alcohol reading is at least 0.05, but less than 0.08.
  • Special Range Drink Driving: where your alcohol reading is at least 0.02, but less than 0.05.

This applies only if you are an “L” plater or “P” plater, or if you were on an interlock driver licence, your licence was disqualified or suspended or cancelled. For a list of the other circumstances it applies to, see section 107 Road Transport Act 2012 (NSW).

  • Novice Range Drink Driving: where your alcohol reading is more than 0, but less than 0.02. This generally only applies to you if you are an “L” or “P” plater, suspended or disqualified from driving. The full list is reflected in s107 of the Road Transport Act.

The following is important information that experienced drink driving lawyers in Sydney should be able to advise on- when it comes to drink driving charges in NSW.

Can the Police 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.

Our drink driving lawyers are in Parramatta, Sydney and Liverpool. They are available to answer any questions surrounding drink driving charges- and offer free first consultations.

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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