DUI - Driving Under the Influence of Alcohol
Driving under the influence of alcohol is a serious offence within the NSW justice system, and a conviction can result in severe consequences for the accused. As such, DUI charges must be dealt with seriously and with the support of experienced criminal lawyers.
The team at Hamilton Janke Lawyers have extensive experience defending individuals accused of traffic offences and will ensure you receive the best possible outcome.
What is Driving Under the Influence in NSW?
Traffic laws within NSW define driving under the influence when drugs or alcohol affects your ability to operate a motor vehicle in such a way that it results in impaired driving. You can also be charged with this offence if you were in the driver’s seat attempting to put the vehicle in motion or supervising a learner whilst intoxicated by alcohol or drugs.
Given this reduced ability to drive, traffic safety facts have shown that impaired driving due to substances such as alcohol is a prominent causative factor for fatal crashes. This risk increases, especially when underage drinking and driving is involved.
Potential Consequences: Legal, Personal & Professional
Drunk driving or driving under the influence of drugs severely affects your ability to drive safely.
Drugs and alcohol affect your driving ability by reducing your small muscle control ability, reaction time, and concentration, negatively impacting your vision and coordination and can also influence your speed control of a motor vehicle, which are all risk factors for serious injury, motor vehicle crashes/fatal crashes.
If you are convicted of driving whilst intoxicated or under the influence (DWI or DUI conviction), this can impact your ability to travel overseas, as certain countries do not allow people with a criminal record to enter. A criminal record also affects your ability to be employed in certain jobs.
Finally, your driver’s licence will be subject to a disqualification period if charged with an offence. Contrary to popular belief, there is no such thing as a ‘restricted licence’ in NSW to allow you to drive for certain reasons, such as work-related needs. Therefore, you will have your licence disqualified and lose it for a period of time. For repeat offenders of impaired driving due to substances, there is also the possibility of imprisonment.
How the Law Classifies DUI
The Road Transport Act 2013 has several classifications of drug driving and drink driving offences.
As per section 110 of the Road Transport Act 2013, it is an offence to drive with a blood alcohol concentration (‘BAC’) higher than 0.05 (the general alcohol limit). This section operates on the basis of the level of prescribed alcohol concentration detected via a breath analysis either at a random breath test or police station or, in some cases, by a blood test.
This offence is then divided into five subsections based on the level of alcohol detected by the breath sample with a higher blood alcohol level, resulting in more serious penalties.
Section 111 of the Road Transport Act 2013 mirrors the above offence but in relation to drug driving, which includes certain prescription medications. However, under this subsection, there is no division between different levels of concentration.
Section 111A of the Road Transport Act 2013 then makes it an offence to have the presence of both alcohol and drugs detected via a breath test/oral fluid or blood whilst driving.
Finally, under section 112 of the Road Transport Act 2013, it is an offence to drive or attempt to drive a motor vehicle while under the influence of illicit drugs and certain prescribed medication (drug driving) or alcohol.
Accordingly, the main difference between sections 110-111A and 112 is that sections 110-111A are based on detection via a breath analysis against a BAC limit, used as evidence to support the charge (PCA charge).
In some cases under s 112, a person’s blood alcohol level may not be over the 0.05 threshold. Still, rather, a reasonable suspicion of consuming alcohol or driving under the influence of drugs is based on an observation whereby it is clear that a person’s driving ability is affected (DUI charge). This reduced ability to drive can be reinforced by indications such as slurred speech, disorientation, poor coordination, smell of alcohol, erratic behaviour or driving.
Consequently, your physical state is irrelevant to a PCA charge but informs the DUI charge.
On-the-spot Penalties for DUI in NSW
As of 2019, police have the discretion to issue an on-the-spot infringement notice to impaired drivers who have been caught drink-driving with a novice, special, or low-range concentration of alcohol.
This means individuals will not receive a criminal conviction or go to court; however, they will receive a 3-month driver’s licence suspension if they do not contest the charge.
This licence suspension will be effective immediately, and you can only begin driving again once the suspension period has elapsed.
The Court Imposed Penalties for a DUI
If you plead guilty to any drug or drink-driving charges, the court can impose a disqualification period on your driver’s license, monetary penalties, imprisonment, and an interlock program, whereby you will have to complete a breath test before you can drive a vehicle and while you are driving.
Low range, Special range and Novice range prescribed concentration of alcohol ('PCA')
Novice range: This category is only relevant to drivers who hold either a learner’s or a provisional licence with a BAC detected via breath test of more than 0.00 and up to 0.019.
For a first offence, there is a maximum penalty of $2,200 and a 6-month automatic licence disqualification (minimum: 3 months).
A second and subsequent offence will result in a maximum $3,300 fine and a mandatory 12-month interlock program after a 1-3 month disqualification has been completed.
Special range: This category is for a special group of drivers with a BAC detected via breath analysis of more than 0.02 and less than 0.05.
This category extends to drivers who:
- Have had their driver’s licence disqualified, suspended or cancelled.
- Have never held a driver’s licence.
- Drivers who have been refused a driving licence.
- Drivers on their learner or provisional licence.
- Drivers of public vehicles, i.e. buses/taxis, who exceed 0.02 BAC limit.
The penalties are the same as those for novice traffic offences, both first and second.
Low range PCA
Low range drink driving charge that relates to drivers with a blood alcohol concentration of more than 0.05 and less than 0.08.
For a first offence, the maximum fine is $2,200, with an automatic 6-month licence disqualification period and a 3-month minimum disqualification period.
A second or subsequent offence will result in a maximum fine of $3,300 and a mandatory 12-month interlock program after a 1-3 month disqualification has been completed.
Middle range PCA
A mid-range drink driving offence relates to drivers who have a BAC of between 0.08-0.149.
For an initial offence, the maximum penalty is $2,200 and 9 months imprisonment, with a mandatory interlock program of 12 months after a 3-6 month disqualification has been completed.
A second or subsequent offence, after your licence has been disqualified for 6-9 months, has a maximum penalty of $3,300 and 12 months imprisonment with a 24-month interlock program.
High range PCA
A high-range PCA is considered a major offence with a BAC recording of 0.15 +.
An initial offence is punishable by a maximum of 18 months imprisonment and $3,300 fine with a 24-month interlock program after a 6-9 month disqualification.
A second or subsequent offence has a maximum penalty of 2 years imprisonment and a $5,500 fine with a 48-month interlock program after a 6-9 month disqualification.
Defences for Driving Under the Influence in NSW
It is a defence to drink driving offences if you had an honest and reasonable belief that you were under the legal blood alcohol limit whilst driving. However, this is a hard defence to prove and must have a reasonable basis.
Furthermore, the most important requirement that police must follow to obtain the breath analysis certificate is that an alcohol sample be taken within two hours of the last known act of driving. If this is not complied with, the evidence has been improperly obtained.
Finally, police cannot subject you to a breathalyser for alcohol detection if you are at your house. You may only be tested either during a random roadside alcohol test, at the police station, or if an officer has reasonable cause to believe that the person is or was driving a vehicle on the road, occupying the driving seat of a vehicle on the road and attempting to put the vehicle in motion, or supervising a learner driver.
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