Drink driving, or DUI, is one of the most common and most serious traffic offences dealt with by NSW courts every day. The consequences of a conviction can be harsh, with a mandatory imposition of periods of licence disqualification leading to the loss of employment and other major inconveniences.
What constitutes drink driving?
Drink driving is more technically known as a ‘drive with a prescribed concentration of alcohol present in your breath or blood’ offence. The charge you receive will depend on the precise level of alcohol present in your breath or blood when you are formally tested at a police station or ‘booze bus’.
- Low-range PCA – 0.05 grams or more but less than 0.08 grams of alcohol in 210 litres of breath or 100 millilitres of blood.
- Middle-range PCA – 0.08 grams or more but less than 0.15 grams of alcohol.
- High-range PCA – 0.15 grams or more of alcohol.
Police officers can pull you over for the purpose of a random breath test, or they can pull you over because some aspect of your driving is erratic or you are committing another driving offence. If you return a reading above 0.05, then the police will arrest you for the purpose of conduct a formal breath analysis.
What the police need to prove
To be found guilty of a PCA offence the police must prove the following:
- That you were driving a vehicle on a NSW road or road related area and
- At the time of driving you had a blood-alcohol reading of .05 or higher
Possible defences for drink driving
The reading was incorrect or otherwise inaccurate:
This is generally a very expensive and difficult defence to run. In most cases, the equipment used to take and analyse a breath or blood sample will be accurate. The issue that this argument will usually go to is that the analysis taken at the police station or ‘booze bus’ sometime after you have been arrested does not reflect the concentration of alcohol in your system while you were driving. It is common for there to be some upward and downward fluctuation in blood-alcohol levels over time, and there are pharmacologists who could be engaged to provide expert evidence on your behalf to state that it is possible the reading taken some time after your arrest does not reflect your actual BAC whilst you were driving. Generally, this argument will only be available to those who are just over the low-range PCA limit of 0.05 grams.
The home safe rule:
If a police officer requires you to subject to a breath test at your home or in your driveway which returns a positive reading for alcohol, you should contact a solicitor immediately. The home safe rule states that police officers cannot require you to submit to a breath test at your home. If this does happen to you, it may be open to the court to reject the evidence of the breath test, which means there would be no evidence to find you guilty of drink driving.
Penalties for drink driving in NSW
Below is a list of the penalties for first offenders that apply to fully licenced drivers in NSW:
- Low-range PCA
- Maximum fine – $1100
- Minimum disqualification period – 3 months
- Automatic disqualification period – 6 months
- Middle-range PCA
- Maximum fine – $2200
- Maximum term of imprisonment – 9 months
- Minimum disqualification period – 6 months
- Automatic disqualification period – 12 months
- Minimum disqualification period (interlock) – 3 months
- Maximum disqualification period (interlock) – 6 months
- Mandatory interlock period – 12 months
- High-range PCA
- Maximum fine – $3300
- Maximum term of imprisonment – 18 months
- Minimum disqualification period – 12 months
- Automatic disqualification period – 3 years
- Minimum disqualification period (interlock) – 6 months
- Maximum disqualification period (interlock) – 9 months
- Mandatory interlock period – 24 months
The relevant legislation states that any disqualification period will not be imposed if you are sentenced to a conditional release order without proceeding to a conviction pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). This may be difficult to obtain as generally the starting position for a Local Court Magistrate sentencing for a drink driving offence is a conviction and a fine. If you wish to obtain a non-conviction order for a drink driving offence, it is highly recommended you consult an experienced criminal defence solicitor.
While fines are the most common penalty imposed for PCA offences, more serious examples of these offences can result in any of the following:
Conditional Release Order
Conditional Release Orders (CRO) are often used to deal with first time offenders and less serious offences where the offender is unlikely to present a risk to the community.
A CRO is an order of the court that you are to be of good behaviour (not commit any other offences) for a specific period of time.
CROs can include conditions such as drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. Courts have discretion to not impose a conviction on a CRO, if they consider it appropriate. CROs can be for a maximum period of 2 years.
The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.
Community Corrections Order
Community Correction Orders (CCO) are used to punish offenders for offences that do not warrant imprisonment or an Intensive Corrections Order, but are too serious to be dealt with by a fine or lower level penalty.
CCO’s are a flexible sentence that the court can tailor to reflect the nature of the offender and the offence. The court can select from the range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.
Intensive Corrections Order
An Intensive Corrections Order (ICO) is a custodial sentence that the court decides can be served in the community. Community safety is the court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.
Supervision is a mandatory condition of an ICO. Further, the Courts must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
The ICO is the most serious sentence that an offender can serve in the community. ICOs are not available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving the discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
A person convicted of a domestic violence offence can only be sentenced to an ICO if the court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
Full Time imprisonment
Full Time imprisonment is the most serious penalty a court can impose. The sentence involves a period of time that will be spent inside an NSW correctional centre. When imposing a full time custodial sentence in most circumstances the court will apply a Non-Parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the Non-Parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.
Book a Free Consultation for a driving charge
Drink driving charges are among the most common criminal offences that people are charged with. Our Drink Driving Lawyers in Parramatta have an outstanding track record in representing clients who have been charged with PCA offences. We have achieved in a number of cases conditional release orders without convictions for first time offenders, allowing them to keep their licence. A licence for some people is a livelihood, and we always strive to do our best to ensure you can keep your livelihood.
If you or anyone you know has been charged with a drink driving offence, you should contact First Offence Legal and book a free no obligation consultation. Remember, you should always make First Offence Legal your first defence.