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Drink Driving
What is Drink Driving ?
No matter who you are, anyone can find themselves charged with alcohol-related motoring offences. We have acted for a wide array of people including but not limited to doctors, teachers, medical professionals, police officers, bankers, business persons, full time drivers and even lawyers in the past.
The following are the different types of Drink Driving charges in NSW.
- Novice (Zero alcohol reading 0.01-0.019);
- Special Range (over 0.02);
- Low Range PCA (0.05 – 0.079 reading);
- Mid-Range PCA (0.08 – 0.149 reading);
- High Range PCA (0.15 and above); or
- Refuse Breath Analysis
Case law/Jurisdiction
On 8 September 2004 the New South Wales Court of Criminal Appeal delivered a guideline judgment concerning the offence of high range PCA (prescribed concentration of alcohol). The case is called Re: Application by Attorney-General (No. 3 of 2002) (2004) 61 NSWLR 305).
Although the Guideline Judgment is in relation to offenders found guilty of high-range PCA, courts often refer to the principles and comments made by the judges in the Guideline Judgment when sentencing offenders charged with low range or mid-range PCA.
In the Judgment the nature and elements of the way sentencing must/should usually occur for the various levels of Drink Driving were set out as follows;
The Supreme Court said that the following factors aggravate the seriousness of the offence:
- The degree of intoxication;
- Erratic or aggressive driving;
- Competitive driving or showing off;
- Length of the journey at which others are exposed to risk; and
- The number of persons put at risk by the driving (for example, passengers in the vehicle).
The Supreme Court also made the following observations:
- Prior good character is of less relevance because persons of otherwise good character often commit these offences;
- Nature of the driving: Once the vehicle is in motion the offence is more serious because of the risk of death or injury to others is increased;
- Involvement in a driver education program: This will have little impact on the appropriate sentence to be imposed with high range PCA, except in relation to the length of disqualification or the amount of a fine.
The Court said that the offence is “so serious and the criminality…so high” that the participation in a program cannot be seen as an alternative to punishment. It will not warrant the making of a section 10 simply because the offender has participated in such a program.
In terms of the period of disqualification, the automatic period is not the maximum, but merely a default period that operates on conviction unless some other order is made. The disqualification period can be longer. There should be “sufficient and appropriate reasons for reducing the automatic period”.
There will almost invariably be hardship, or at least inconvenience, caused by disqualification for such a lengthy period.
The Supreme Court said an ordinary offender for the offence of high-range PCA is where:
- the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
- the offender was detected by a random breath test;
- the offender has prior good character;
- the offender has nil, or a minor, traffic record;
- the offender’s licence was suspended on detection;
- the offender pleaded guilty;
- there is little or no risk of re-offending; and/or
- the offender would be significantly inconvenienced by loss of licence
If you are charged with the offence of DRINK DRIVING what are your options?
National Criminal Lawyers have been successful in defending a number of Drink Driving charges and achieved a number of non-convictions for Drink Driving (low range, special range and Mid-range).
NCL offer the following options for those who have been charged with Drink Driving:
- We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended ;
- NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
- Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing)with the view of having you sentenced less harshly; and/or
- Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.
Pleading Guilty
If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.
Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.
Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.
Maximum Penalties
Drink driving penalties in NSW First Major offence* within 5 years
| Offence | Maximum fine | Maximum jail | Automatic disqualification | Minimum disqualification |
| Novice range PCA 0.01 – 0.019 | $1,100 | Nil | 6 months | 3 months |
| Special range PCA 0.02 – 0.049 | $1,100 | Nil | 6 months | 3 months |
| Low range PCA 0.05 – 0.079 | $1,100 | Nil | 6 months | 3 months |
| Mid-range PCA 0.08 – 0.149 | $2,200 | 9 months | 12 months | 6 months |
| High range PCA over 0.150 | $3,300 | 18 months | 3 years | 12 months |
| Refuse breath analysis | $3,300 | 18 months | 3 years | 12 months |
| Wilfully alter blood concentration | $3,300 | 18 months | 3 years | 12 months |
| Refuse breath test | $1,100 | Nil | 6 months | Nil |
| Driving under the influence (DUI) | $2,200 | 9 months | 12 months | 6 months |
Drink driving penalties in NSW Second Major offence* within 5 years
| Novice range PCA (0.00 – 0.019) | 2200 | Nil | 12 months | 6 months |
| Novice range PCA (0.00 – 0.019) | 2200 | Nil | 12 months | 6 months |
| Low range PCA ( 0.05 – 0.079 ) | 2200 | Nil | 12 months | 6 months |
| Low range PCA ( 0.05 – 0.079 ) | 2200 | Nil | 12 months | 6 months |
| High range PCA ( over 0.150 ) | 5500 | 2 years | 5 years | 2 years |
| Driving under the influence (DUI) | 3300 | 12 months | 3 years | 12 months |
| Refuse breath analysis | 5500 | 2 years | 5 years | 2 years |
| Wilfully alter blood concentration | 5500 | 2 years | 5 years | 2 years |
| Refuse breath test | 1100 | Nil | ||
| Wilfully alter blood concentration | 5500 | 2 years | 5 years | 2 years |
THE FOLLOWING OFFENCES WILL NOW ALSO ALWAYS RESULT IN A MANDATORY INTERLOCK ORDER:
| Offence | Minimum time off the road | Maximum time off the road | Minimum time in interlock program | |
| Novice Range, Special Range or Low Range (second offence) | 1 months | 3 months | 12 months | |
| Mid-Range (second offence) | 6 months | 9 months | 24 months | |
| High Range | 6 months | 9 months | 24 months | |
| High Range (second offence) | 9 months | 12 months | 48 months | |
| DUI (second offence) | 6 months | 9 months | 24 months | |
| Refuse/fail to provide sample | 6 months | 9 months | 24 months | |
| Refuse/fail to provide sample (second offence) | 9 months | 12 months | 48 months |
Major traffic offences include:
- Refuse or fail to supply sample of urine or blood (fatal accident);
- Refusing or failing to submit to the taking of the sample of blood in accordance with the directions of a medical practitioner, registered nurse or prescribed sample taker;
- Failing or refusing to provide oral fluid sample;
- Failing to stop and assist following impact causing death or injury;
- Refuse sample of blood or urine or wilfully introduce or alter amount of drug in blood or urine;
- Drive under influence of alcohol or drug;
- Refuse breath analysis or wilfully alter concentration;
- Prevent medical practitioner or nurse from taking blood;
- Menacing Driving;
- A conviction of murder or manslaughter arising out of the use of motor vehicle;
- Negligent Driving causing death or grievous bodily harm;
- Driving recklessly, furiously or in a manner or speed dangerous to the public;
- Predatory driving, Involvement in a police pursuit, and failing to stop after an impact causing grievous bodily harm; and/or
- A conviction for wounding, causing actual bodily harm or inflicting grievous bodily harm arising out of the use of a motor vehicle;
Pleading Not Guilty
If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.
A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.
National Criminal Lawyers have defended thousands of people charged with Cultivate and are experts at these hearings.
Defences
Some of the possible defences available for those charged with Drink Driving can include:
- If your actions were necessary to prevent a greater harm from occurring, you may have the defence of Necessity.
- The “honest and reasonable mistake of fact” defence. This defence states that you are not guilty of a drink driving offence if, at the time of driving, you:
- Honestly believed that you were under the limit; and
- In the opinion of the court, it was reasonable for you to hold that belief in all of the circumstances of your case.
- If you think that your reading may be as high as it was because your drink has been spiked, that is also a scenario in which this defence can be used; and/or
- Despite the fact that the reading produced by a breath analysis machine at the station is deemed accurate, there may be a way to challenge that reading with respect to what it was at the time of driving. Often it may be necessary to seek the assistance of experts such a pharmacologist’s expert to challenge the reading.
Possible Penalty's
Noting the Guideline Judgment in NSW, a court can impose any of the following penalties for a Drink driving charge.
- Prison sentence
- Home Detention
- Intensive correction order (previously periodic detention)
- Suspended sentence
- Community service order (CSO)
- Good behaviour bond
- Fine
- Section 10
- Period of Interlock
- Period of Disqualification
However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:
- Full time Imprisonment
- New ICO (ICO) with a home detention condition available
- New Community Correction Order (CCO)
- Fine
- New Conditional release Order (CRO)
- Period of Interlock
- Period of Disqualification
Case Study 1
Our client was charged with Low Range PCA (Prescribed Concentration of Alcohol) after he had been observed doing a U- turn at a traffic light intersection. A breath analysis revealed a reading of 0.069. We asked the client to participate in the Traffic Offender Intervention Program, a course which aims to provide education on traffic rules. Our client’s traffic record was good , with only one speeding offence being recorded in his ten-year driving history.
We were also able to argue that he had a genuine need for a driver’s licence for work, and that he would lose income as a direct result of it being disqualified. The magistrate sentenced our client to a non-conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which meant our client was able to keep his driver’s licence.
Case Study 2
Our client was pulled over by police and asked to perform a breath test wherein it was found a low reading of alcohol. He pleaded guilty to driving with a low range of PCA and cooperated fully with the police. We represented our client in his sentencing hearing where submissions were made regarding our client’s remorse and the fact that he had successfully undertaken a Traffic Offender Intervention Program. He was given a non-conviction order.
Case Study 3
Our client was charged with driving a motor vehicle whilst over the middle range alcohol limit but not over the high limit. The client needed a licence to maintain employment as a truck driver.
He instructed National Criminal Lawyers on the appeal as the local Court convicted him of the offence and fined him.
On appeal, we made submissions on behalf of the client and submitted an affidavit. Our specialist lawyers also drafted lengthy submissions as to our clients mitigating factors for the court to take into account when determining the appropriate penalty. The Court quashed the decision of the local court and dismissed the charge (with a lengthy s10 bond) .
Why National Criminal Lawyers?
There are three reasons to choose National Criminal Lawyers:
1. We get the results
We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.
2. We give a Senior Defence Lawyer guarantee
No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.
3. National Criminal Lawyers are the best defenders of your rights
At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.
If you have been charged with any driving offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.
Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.
