Drink Driving charges are some of the most commonly charged offences in NSW, whether it’s your first offence or your tenth, it is best to speak to an experienced criminal lawyer to help you get the best result.

THE OFFENCE:

The Road Transport Act 2013 (NSW) provides the offence of drink driving, the penalties and charges depend on the amount of alcohol present at the time of the test:

  • Novice range (0.001 – 0.019 for Learner drivers, P1, P2 or had an interlock in your vehicle).
  • Special range (0.20 – 0.049 for Learner drivers, P1, P2 or had an interlock in your vehicle or a bus or taxi driver).
  • Low range (0.05 – 0.079).
  • Mid-range (0.08 to 0.149).
  • High range (0.15 and higher).

NOVICE RANGE DRINK DRIVING

THE OFFENCE:

To find a person guilty of novice range drink driving the prosecution must prove the following beyond reasonable doubt:

1.      You were a learner or provisional or had a court-mandated interlock installed in your vehicle.

2.      You were driving a vehicle or attempted to drive the vehicle or put it in motion

3.      You had a blood alcohol concentration between 0.001 and 0.019

 

THE PENALTIES:

There are six common penalties that may be imposed on a person as follows:

1.      On the spot fine: The police officer may choose to give you an on-the-spot fine, for some offences, they have the discretion to do so. If you decide won’t have to go to court unless you wish to challenge the charge or the conviction.

2.      Fine: A monetary penalty can be imposed on any driving matter. The table below includes the maximum penalty for each offence.

3.      Imprisonment: A term of imprisonment can be imposed for many offences.

4.      Minimum suspension: The minimum suspension is the minimum suspension period the court may impose in the circumstance that a conviction is recorded.

5.      Automatic suspension: The automatic suspension is the ‘default’ position the court would begin from in considering an appropriate suspension period.

6.      Interlock system: The interlock system imposed in a person’s car is a device that restricts a person from driving a car without blowing into a Breathalyzer.

 

On the spot fine? Fine Imprisonment Minimum suspension Automatic suspension Interlock system?
First offence Yes, $572 & three-month suspension. $2,200 No 3 months 6 months No
Second or subsequent offence No $3,300 No 6 months 12 months Yes, 12 months

 

SPECIAL RANGE DRINK DRIVING

THE OFFENCE:

To find a person guilty of novice range drink driving the prosecution must prove the following beyond reasonable doubt:

1.      You were a learner or provisional or had a court-mandated interlock installed in your vehicle or you were a bus or taxi driver.

2.      You were driving a vehicle or attempted to drive the vehicle or put it in motion.

3.      You had a blood alcohol concentration between 0.20 and 0.049.

 

THE PENALTIES:

There are six common penalties that may be imposed on a person as follows:

1.      On the spot fine: The police officer may choose to give you an on-the-spot fine, for some offences, they have the discretion to do so. If you decide won’t have to go to court unless you wish to challenge the charge or the conviction.

2.      Fine: A monetary penalty can be imposed on any driving matter. The table below includes the maximum penalty for each offence.

3.      Imprisonment: A term of imprisonment can be imposed for many offences.

4.      Minimum suspension: The minimum suspension is the minimum suspension period the court may impose in the circumstance that a conviction is recorded.

5.      Automatic suspension: The automatic suspension is the ‘default’ position the court would begin from in considering an appropriate suspension period.

6.      Interlock system: The interlock system imposed in a person’s car is a device that restricts a person from driving a car without blowing into a Breathalyzer.

 

On the spot fine? Fine Imprisonment Minimum suspension Automatic suspension Interlock system?
First offence No $2,200 No 3 months 6 months No
Second or subsequent offence No $3,300 No 6 months 12 months Yes, 12 months

LOW RANGE DRINK DRIVING

THE OFFENCE:

To find a person guilty of low range drink driving the prosecution must prove the following beyond reasonable doubt:

1.      You were driving a vehicle or attempted to drive the vehicle or put it in motion

2.      You had a blood alcohol concentration between 0.05-0.079

On the spot fine? Fine Imprisonment Minimum suspension Automatic suspension Interlock system?
First offence No $2,200 No 3 months 6 months No
Second or subsequent offence No $3,300 No 6 months 12 months Yes, 12 months

The Court may ‘exempt’ you from the interlock system, if this is the case, the court has the discretion to impose alternate penalties such as:

Fine Imprisonment Minimum suspension Automatic suspension
First offence
Second or subsequent offence $3,300 No 6 months 12 months

MID RANGE DRINK DRIVING

THE OFFENCE:

To find a person guilty of mid-range drink driving the prosecution must prove the following beyond reasonable doubt:

1.      You were driving a vehicle or attempted to drive the vehicle or put it in motion

2.      You had a blood alcohol concentration between 0.08-0.149

 

THE PENALTIES:

There are six common penalties that may be imposed on a person as follows:

1.      On the spot fine: The police officer may choose to give you an on-the-spot fine, for some offences, they have the discretion to do so. If you decide won’t have to go to court unless you wish to challenge the charge or the conviction.

2.      Fine: A monetary penalty can be imposed on any driving matter. The table below includes the maximum penalty for each offence.

3.      Imprisonment: A term of imprisonment can be imposed for many offences.

4.      Minimum suspension: The minimum suspension is the minimum suspension period the court may impose in the circumstance that a conviction is recorded.

5.      Automatic suspension: The automatic suspension is the ‘default’ position the court would begin from in considering an appropriate suspension period.

6.      Interlock system: The interlock system imposed in a person’s car is a device that restricts a person driving a car without blowing into a Breathalyzer.

On the spot fine? Fine Imprisonment Minimum suspension Automatic suspension Interlock system?
First offence No $2,200 9 months 3 months 6 months Yes, 12 months
Second or subsequent offence No $3,300 12 months 6 months 12 months Yes, 2 years

The Court may ‘exempt’ you from the interlock system, if this is the case, the court has the discretion to impose alternate penalties such as:

Fine Imprisonment Minimum suspension Automatic suspension
First offence $2,200 9 months 6 months 12 months
Second or subsequent offence $3,300 12 months 12 months 3 years

 

HIGH RANGE DRINK DRIVING

THE OFFENCE:

To find a person guilty of high range drink driving the prosecution must prove the following beyond reasonable doubt:

1.      You were driving a vehicle or attempted to drive the vehicle or put it in motion

2.      You had a blood alcohol concentration between 0.15 or higher

 

THE PENALTIES:

There are six common penalties that may be imposed on a person as follows:

1.      On the spot fine: The police officer may choose to give you an on-the-spot fine, for some offences, they have the discretion to do so. If you decide won’t have to go to court unless you wish to challenge the charge or the conviction.

2.      Fine: A monetary penalty can be imposed on any driving matter. The table below includes the maximum penalty for each offence.

3.      Imprisonment: A term of imprisonment can be imposed for many offences.

4.      Minimum suspension: The minimum suspension is the minimum suspension period the court may impose in the circumstance that a conviction is recorded.

5.      Automatic suspension: The automatic suspension is the ‘default’ position the court would begin from in considering an appropriate suspension period.

6.      Interlock system: The interlock system imposed in a person’s car is a device that restricts a person driving a car without blowing into a Breathalyzer.

On the spot fine? Fine Imprisonment Minimum suspension Automatic suspension Interlock system?
First offence No $3,300 18 months 6 months 9 months Yes, 2 years
Second or subsequent offence No $5,500 18 months 9 months 12 months Yes, 4 years

The Court may ‘exempt’ you from the interlock system, if this is the case, the court has the discretion to impose alternate penalties such as:

Fine Imprisonment Minimum suspension Automatic suspension
First offence $3,300 18 months 12 months 3 years
Second or subsequent offence $3,300 2 years 2 years 5 years

 

CAN I KEEP MY LICENSE?

The above penalties don’t apply if the court decides to not impose a conviction. The court may do so by imposing either:

1.      A conditional release order without condition; OR

2.      Dismissal without conviction.

 

Receiving a non-conviction for drink driving matters is rare, particularly with high range drink driving. You should speak to an experienced criminal lawyer about your prospects if you have a strong need for your license. The court may take into account any factor it considers relevant when a defendant is seeking a non-conviction for a traffic offence such as:

1.      Your criminal and traffic history.

2.      The circumstances of the offence.

3.      An early plea of guilty.

4.      Your need for your license.

5.      Character references.

6.      An apology letters.

7.      Medical & psychological reports.

 

CAN I GO TO JAIL?

On the opposite end of the spectrum, what about jail? As listed above it is possible to receive a custodial sentence for mid-range drink driving or high range drink driving. However, as is the case for all offences in NSW, the maximum penalty is reserved for the “worst category” of offenders (Veen v The Queen (No 2) (1988) 164 CLR 465 at 478) and in most cases, it would be unlikely that a person receives a custodial sentence in the absence of an extremely poor criminal and driving record.

High Range Drink Driving Guideline Judgement:

On 8 September 2004, the Court of Criminal Appeal delivered a guideline judgment for the offence of high range PCA: Re-Application by Attorney-General (No 3 of 2002) (2004) 61 NSWLR 305.

Before anything further comment is made, it is important to note that a guideline judgment is just that – a guideline. Guidelines exist to provide meaningful and structured guidance to judges in the sentencing process. They are not a straitjacket. They do not restrict a judge’s discretion.

The lead judgment is that of Howie J. There is no substitute for reading the whole judgment but, in summary, he made the following guideline:

  1.  An ordinary case of the offence of high range PCA is one where:
    1. the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
    2. the offender was detected by a random breath test;
    3. the offender has prior good character;
    4. the offender has nil, or a minor, traffic record;
    5. the offender’s licence was suspended on detection;
    6. the offender pleaded guilty;
    7. there is little or no risk of re-offending;
    8. the offender would be significantly inconvenienced by the loss of licence.
  2. In an ordinary case of an offence of high range PCA:
    1. an order under s 10 of the Crimes (Sentencing Procedure) Act will rarely be appropriate;
    2. a conviction cannot be avoided only because the offender has attended, or will attend, a driver’s education or awareness course;
    3. the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
    4. a good reason under (iii) may include:
      1. the nature of the offender’s employment;
      2. the absence of any viable alternative transport;
      3. sickness or infirmity of the offender or another person.
  3. In an ordinary case of a second or subsequent high range PCA offence:
    1. an order under s 9 of the Crimes (Sentencing Procedure) Act will rarely be appropriate;
    2. an order under s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
    3. where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.
  4. The moral culpability of a high range PCA offender is increased by:
    1. the degree of intoxication above 0.15;
    2. erratic or aggressive driving;
    3. a collision between the vehicle and any other object;
    4. competitive driving or showing off;
    5. the length of the journey at which others are exposed to risk;
    6. the number of persons actually put at risk by the driving.
  5. In a case where the moral culpability of a high range PCA offender is increased:
    1. an order under s 9 or s10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
    2. where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.
  6. In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:
    1. a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
    2. where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.

Our team is renowned for getting extraordinary results in relation to driving matters, we can assist in putting you in the best light ahead of sentence day to ensure you get the best result.

 

DEFENCES

HONEST AND REASONABLE MISTAKE OF FACT:

This defence applies in circumstances where you have both an honest and reasonable belief and that belief is a mistaken belief as to a fact which constitutes the offence i.e., in circumstances where you have an honest and reasonable belief that you were not intoxicated (by way of not drinking alcohol for a significant period), however, blew over the legal limit for some reason, you may be able to rely upon the defence of honest and reasonable mistake of fact.

 

NECESSITY

The defence of necessity is available in circumstances where the accused is incited in some way (often by a threat or identification of potential harm) to break the law to avoid even more dire consequences. The defendant must show the following (R v Loughnan [1981] VR 443 at [448]:

a)      The criminal act must have been done in order to avoid consequences of irreparable evil upon the accused or others whom they were bound to protect

b)      The accused must honestly have believed on reasonable grounds that they were placed in a situation of imminent peril; and

c)      The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided

 

DURESS

The defence of duress is available in circumstances where the accused person is threatened in a way where they are forced to commit a crime against their will. It requires four things to be shown, once the defence is raised, the prosecution must disprove beyond reasonable doubt that the defendant was not acting under duress:

1.      An actual threat was made to the accused

2.      The threat was serious enough to justify the accused’s actions

3.      The threat was acting on the mind of the accused at the time of the offence

4.      The threat was continuing

Choosing the right drink driving lawyer for your drink driving case can and will make a massive difference to the final result.

Your legal team or lawyer should have a wealth of experience in all drink driving matters and know the NSW court system inside out when it comes to drink driving convictions. If there is a valid defence your lawyer should know the best way to get you the best possible outcome by the courts. If on the other hand, you do decide to plead guilt your lawyer should be able to protect your driver’s licence as much as possible and get a reduced suspension, fine or sentence. Ideally, they should be able to help you avoid a conviction if they know what they are doing – just like Joseph Harb and his team at Australian Criminal Defence.

Drink Driving Case Studies

  • Our client was charged with Mid-Range drink driving. Our client was a mother of four children and had a significant need for a drivers licence for employment. The matter proceeded to sentence at Manly Local Court and the magistrate agreed with our submissions that no conviction should be recorded. Our client received a 2 year conditional release order without conviction and was able to keep her licence.
  • Our client was charged with Mid-Range drink driving. Our client had a significant need for a drivers licence for employment. The matter proceeded to sentence at Bankstown Local Court and the magistrate agreed with our submissions that no conviction should be recorded in this matter. Our client received a 12 year conditional release order without conviction.
  • Our client was charged with High-Range drink driving. Our client had a significant traffic record which included two prior high range offences. The matter proceeded to sentence at Campbelltown Local Court and the magistrate agreed with our submissions that our client should not receive a full time term of imprisonment. Our client received a 15 months intensive corrections order.
  • Our client was charged with High-Range drink driving. Our had a significant need for a drivers licence for employment and significant need to care for his elderly parents. The matter proceeded to sentence at Finley Local Court and the magistrate agreed with our submissions that no conviction should be recorded in this matter. Our client received a two year section 10 good behaviour bond. Our client got to keep this licence.

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