What are the Penalties and Defences for High-Range Drink Driving Charges?

 

Primary School Teacher Charged for High-Range Drink Driving

on 8 February 2018, a primary school teacher was charged for high-range drink driving when Kelly Littlejohn aged 40, allegedly returned a reading of 6 times the limit- 0.306.

The primary school teacher from Caringbah was driving after having attended a parent teacher night. Police allege that she was stopped due to her manner of driving erratically.

Her licence was immediately suspended by police.

Woman Allegedly Driving to School Charged for High-Range Drink Driving

It has also been reported that on Wednesday 18 July 2018, a 43-year-old woman, at about 2:30pm, allegedly drove a Lexus SUV colliding into another stationary vehicle on Caravan Head Rd, in Oyster Bay, NSW.

It is alleged that the Woman was travelling to school, but police cannot say if the was travelling to school to pick children up.

Following the collision, some good Samaritans and a family member assisted her away from the vehicle and into a nearby home.

It was not until later when police arrived that she was breath tested  at the house before being arrested, escorted back to the Sutherland police station where she gave a breath analysis which allegedly gave a reading of 0.287- nearly 6-times the legal drink driving limit in NSW.

She was charged with high range drink driving, and was granted bail. Her licence was suspended immediately by police. Miraculously no one was injured.

Woman with 3 Children in SUV Allegedly Drove and Crashed Vehicle Whilst Being 7-Times Over the Limit

On another occasion, in early April 2018, another woman aged 37 allegedly drove and crashed her Toyota Landcruiser before turning onto the incorrect side of the road along Washington Drive in Bonnet Bay, NSW.

The woman, who had her 3 children aged 9,7 and 3 were also inside the vehicle and were reportedly seen by witnesses getting out of the vehicle after it collided into a stationary vehicle.

The woman was reportedly seen struggling to get out of the vehicle after the accident as well.

It wasn’t until police later arrived that she was arrested following suspicions of her being intoxicated. She was then escorted to the Sutherland police station where she allegedly provided police with a breath analysis reading considered over 7 times the limit- 0.367.

She was charged with high-range drink driving. Police immediately suspended her licence and she was released on conditional bail.

Inspector Steve Worthington from Sutherland Police Area Command said, “This woman has endangered not only her own life, and the lives of other road users, but also the lives of her own 3 children with this incredibly irresponsible act”.

“The fact she didn’t kill or seriously injure someone with such high blood alcohol content is extremely fortunate, and it is of great concern to police that this behaviour takes place on our roads.” he said.

Family and Community Services (FACS) were contacted for fear of the children’s safety.

High-Range Drink Driving Charges and Penalties in NSW

For an outline of your rights, see our blog on ‘Your Rights and the Law as a Driver in NSW’.

It is a criminal offence attracting heavy penalties and a criminal conviction if you drive or ‘try to put the vehicle in motion’ on a NSW road with an alcohol reading of 0.15 or above in every 210 litres of breath or 100ml of blood which is also known as ‘high-range drink driving’ (section 110(5) of the Road Transport Act 2013 (NSW)).

Anyone guilty of high-range drink driving will face the following penalties.

Fine and Imprisonment Penalties for High-Range Drink Driving

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

18 months

 

   $3,300
If drink driving conviction in last 5 years         2 yrs    $5,500

Driver Licence Disqualification Penalties for High-Range Drink Driving

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 no previous drink driving conviction in last 5 years  

Min:  6 months

 

Max: 9 months

 

      2 yrs Automatic: 3yrs

 

Min: 1 yr

If previous drink driving conviction in last 5 years Min: 9 months

 

Max: 1 yr

      4 yrs Automatic: 4yrs

 

Min: 2yrs

Can You Be Exempt From an Interlock Order?

An interlock program will not apply to you if you apply to the Court to be exempt from it.

Under section 212(3) of the Road Transport Act 2013 (NSW), the Magistrate or Judge will ‘exempt’ you from being subject to an interlock device program if satisfied that:

  • You don’t have access to a vehicle in which to install the device into; or
  • You have a medical condition preventing you from providing a sufficient breath sample to operate the device (this only applies if it’s not reasonably practicable for the device to be changed to enable you to operate the device).

Just because you cant afford the cost of having the device installed or maintained, you will not be granted the interlock exemption order by a court. For those who cant afford it can get financial assistance in certain situations.

Other situations the court will refuse to grant an interlock exemption order include the following:

  • Where you’re prevented from driving the vehicle for work purposes upon installation of the device.
  • Where you have access to a vehicle but the owner of it refuses to allow the device to be installed.

You will be guilty of high-range drink driving if you drove a motor vehicle on a NSW road while your alcohol reading was at least 0.15 in your breath or blood.

‘driving’ here includes a situation where you were not actually driving the vehicle, but where you were at least trying to put the vehicle into motion.

‘trying to put the vehicle into motion’ was expressed in Burchell v Goodall [1994] WASC 491 to mean that you intended to drive and did acts that are considered to be more than merely preparatory to driving it.

An example of trying to put the vehicle into motion can include, placing the key into the ignition with your seat belt fastened.

An example of not trying to put the vehicle into motion is where you were asleep in the car with the engine running to have the air conditioning on, but you didn’t have your seat belt fastened.

The High-Range Guideline Judgement in NSW

The Supreme Court has outlined a guide for lower courts to follow as a guide when sentencing offenders of high-range drink driving.

The Supreme Court has categorised high-range drink driving cases. Certain penalties and restrictions will apply to an offender based on the category he/she falls into, which is outlined by the Supreme Court guideline judgement as summarised in the following table.

 

High range drink driving guideline judgement

 

Realistic range of punishment
If no previous major offence in last 5 years
  • You drove to avoid inconvenience, or you believed you were not that effected by alcohol.
  • You were detected by a random breath test.
  • You have a good traffic record, and prior good character.
  • You will be significantly inconvenienced by a loss of licence.
  • 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 previous major offence in last 5 years
  • You drove to avoid inconvenience, or you believed you were not that effected by alcohol.
  • You were detected by a random breath test.
  • You have a good traffic record, and prior good character.
  • You will be significantly inconvenienced by a loss of licence.
  • Little to no risk of you re offending.
  • conviction with community service order would be more appropriate
If previous high range drink driving conviction in last 5 years
  • You drove to avoid inconvenience, or you believed you were not that effected by alcohol.
  • You were detected by a random breath test.
  • You have a good traffic record, and prior good character.
  • You will be significantly inconvenienced by a loss of licence.
  • Little to no risk of you re offending.
  • Conviction with a community service order, or a more serious punishment would be appropriate
If no previous major offence in last 5 years
  • Your reading was significantly over 0.15.
  • Your vehicle was involved in erratic or aggressive driving.
  • Your car was involved in a collision.
  • You were showing off or driving competitively.
  • You were, or intended, to travel for a long distance.
  • You were in the vehicle with other people.
  • Conviction with a punishment of community service order, or a more serious punishment would be appropriate
If previous major offence in last 5 years
  • Your reading was significantly over 0.15.
  • Your vehicle was involved in erratic or aggressive driving.
  • Your car was involved in a collision.
  • You were showing off or driving competitively.
  • You were, or intended, to travel for a long distance.
  • You were in the vehicle with other people.
  • A punishment of at least suspended sentence, intensive corrections order, home detention or full time prison would be appropriate.
If previous high range drink driving conviction in last 5 years
  • Your reading was significantly over 0.15.
  • Your vehicle was involved in erratic or aggressive driving.
  • Your car was involved in a collision.
  • You were showing off or driving competitively.
  • You were, or intended, to travel for a long distance.
  • You were in the vehicle with other people.
  • Full time prison would be appropriate

Defences to High-Range Drink Driving Charges

You will be not guilty if any of the following defences apply to you in a high-range drink driving case:

  • Your vehicle’s engine was switched off at the time police require a breath test at the road side.
  • The 2-hour rule: police are not allowed to do a breath analysis on you if at least 2-hours have passed since the time you are alleged to have driven a vehicle.
  • The safe home rule: police are not allowed to conduct a breath test on you while you are on your property, driveway or inside your home.
  • Honest and reasonable belief rule: you will be not guilty if you drove with the honest belief that you were not under the influence of alcohol. This defence works only if the belief you held was based on reasonable grounds.
  • Pharmacologist Report: You will be not guilty if you obtain a pharmacologist report from an expert which says that at the time of driving you were more likely than not below the 0.015 alcohol reading. This can occur if you consumed a few drinks moments before driving your vehicle before then being pulled over by police at the road side, and later taken to the police station where around 20-30 minutes later you give breath analysis returning a high-range reading.

Can You Get a Section 10 Dismissal Non-Conviction for High-Range Drink Driving?

Technically you can get a non-conviction also known as a section 10 dismissal or conditional release order without conviction (CRO) by a Court for a high-range drink driving offence in NSW.

Getting a section 10 or CRO will result in no criminal conviction, no demerit points, no fine and no licence disqualification period- which, understandably, is why everybody wants one.

Chances of getting a section 10?

Whether or not you get a non-conviction will ultimately depend on many factors that is worth discussing with an experienced high-range drink driving lawyer, including the circumstances of the offending, the level of reading, the extent of your need for a licence, the distance you intended to travel, the reason you were pulled over by police before giving a road side breath test, whether there was a collision involved, the impact of a conviction and/or disqualification on your job and family or other dependants on you.

The high-range drink driving guideline judgment is also a significant consideration by the courts.

In preparing for a sentence for a high-range drink driving offence, it is critical to ensure that you have well prepared and compelling good character reference for drink driving charge.

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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