With NRMA reporting in 2021 that almost 20% of all fatal crashes involve alcohol, drink driving is considered a serious criminal offence within NSW that can result in grave penalties for those convicted. If you have been charged with a drink driving offence, it is integral you contact experienced traffic lawyers such as the expert team at Hamilton Janke Lawyers to ensure you receive adequate guidance to assist you in receiving the best possible outcome.
Types of drunk driving charges
In NSW, it is a criminal offence to drive with a blood alcohol level that exceeds the specified legal limit. As outlined under section 110 of the Road Transport Act of 2013, there are 6 main drink driving offences, each with differing threshold limits and penalties.
What is the Prescribed Concentration of Alcohol (PCA) in NSW
The prescribed concentration of alcohol (PCA) refers to the legal limit of alcohol that an individual can have in their system at the time of driving a vehicle. This threshold varies depending on the license type/class the individual holds.
Provisional (P1 and P2), learner of interlock driver’s license holder must have a blood alcohol limit of 0.
Unrestricted license holders cannot drive with a BAC reading of 0.05g or more of a concentration of alcohol.
Drink driving ranges
Novice range drink driving
Novice-range drink driving is when an individual is caught driving a motor vehicle with a BAC ranging from 0 to 0.019g. This offence category only applies to those who don’t hold a full license, including learners, provisional licence categories and interlock license holders who are legally subject to a blood alcohol limit of 0.
Special-range drink driving
Special Range Drink Driving / PCA is when the driver of a motor vehicle is caught with a blood alcohol concentration of 0.02 up to 0.49. This offence category only applies to those who don’t hold a full license, including learners, provisional licence categories and interlock license holders who are legally subject to a blood alcohol limit of 0.
Low-range drink driving
Low Range Drink Driving / PCA is when the driver of a motor vehicle is caught with a blood alcohol concentration of 0.050 up to 0.79. This offence applies to all license holders in NSW.
Mid-range drink driving
Mid Range Drink Driving / PCA is when the driver of a motor vehicle is caught with a blood alcohol concentration of 0.080 up to 0.149. This offence is applicable to all license holders in NSW.
High-range drink driving
High-Range Drink Driving / PCA is when the driver of a motor vehicle is caught with a blood alcohol concentration of 0.150 and above. This offence is applicable to all license holders in NSW.
Can I refuse a breath test?
A breath test, or breath analysis, is a test that uses a sample of a person’s breath to provide an estimate of the concentration of alcohol in their body. In NSW, it is a criminal offence to refuse to provide a breath sample for roadside testing or analysis, as prescribed by section 16 of the Road Transport Act 2013 (NSW).
Penalties for refusing a breath test
If a driver refuses or fail to provide a breath analysis sample, they are liable to a maximum penalty of 30 penalty units (currently $3,300) and/or imprisonment for 18 months in the case of a first offence. If an individual has previously committed a drink driving offence and are charged with refusing to provide a breath analysis sample, they are liable to a penalty of 50 penalty units (currently $5,500) and/or imprisonment for a period of 24 months.
An individual may be able to defend a charge for failing to provide a breath analysis sample if they can provide a legal excuse. This may include being unable to provide a sample on medical grounds, or that the police did not request the breath analysis sample within two hours of the accused being in control of the vehicle.
What happens if I get caught drink driving?
If a police officer has caught you driving under the influence of alcohol and over the prescribed limit for your license type, you will be charged with a drink driving offence. In these circumstances, it is likely that you will receive a court attendance notice stating the date and time you are expected to appear in court. The court will then determine the appropriate penalty for your circumstances, dependent on the level of offence with which you are convicted with and your prior criminal history.
As of 2019, police have the discretion to issue an on the spot penalty notice to an individual that has been caught driving with a novice, special or low range prescribed concentration of alcohol. This means individuals will not receive a criminal conviction, or go to court, however, they will receive a 3-month drivers license suspension if they do not contest the charge.
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Penalties for drunk driving
The penalties imposed for a drink driving charge in NSW is greatly dependent on the offence with which you are charged, and your prior history with drink driving.
Novice Range Drink Driving and Special Range Drink Driving
Those charged with novice range drink driving are subject to an ‘automatic disqualification period’ of 6 months if the driver hasn’t committed another major traffic offence within the previous 5 years. In court, the magistrate has the discretion to reduce the disqualification period to a minimum of 3 months. Drivers convicted of novice range drink driving are liable to a maximum fine of 20 penalty units (currently $2,200).
If the driver has previous committed a major traffic offence within the past 5 years, they are subject to a 3-month disqualification as well as a 12-month period during which they must have an interlock device installed in their vehicle. These persons are liable to a maximum fine of 30 penalty units (currently $3,300).
Low-Range Drink Driving
If an individual is charged with low-range drink driving, and it is their first major traffic offence in the past 5 years, they are liable to a maximum penalty of a 6-month disqualification (that can be reduced to a minimum of 3 months) and a maximum fine of 20 penalty units (currently $2,200).
If it is the person 2nd or more major traffic offence in the past 5 years, they are liable to harsher penalties of 3-month disqualification which can be reduced to a month, followed by a 12-month period during which they must have an interlock device installed in their vehicle. Additionally, they can be charged with a maximum fine of 30 penalty units (currently $3,300).
Mid Range Drink Driving
Charges for mid-range drink driving carry maximum penalties of:
- Imprisonment period of up to 9 months
- 6-month license disqualification which may be reduced to a minimum of 3 months, followed by
- 12 months during which they must have an interlock device installed in their vehicle, and
- A fine of 20 penalty units (currently $2,200)
If the driver has been convicted of any other major traffic offences in the previous 5 years, they are liable to maximum penalties of:
- Up to 12 months imprisonment
- 9-month licence disqualification, which may be reduced to 6 months, followed by
- 24 months during which they must have an interlock device installed in their vehicle, and
- A fine of 30 penalty units (currently $3,300)
High Range Drink Driving
As high range drink driving is the most serious drink driving offence in NSW, those convicted are liable to more severe maximum penalties of:
- Up to 18 months imprisonment
- A 9-month license disqualification which may be reduced to 6 months, followed by
- 24 months during which they must have an interlock device installed in their vehicle, and
- A fine of 30 penalty units (currently $3,300).
If the individual convicted has committed any other major traffic offences in the past 5 years, they may receive maximum penalties of:
- Up to 2 years imprisonment
- 12-month license disqualification which may be reduced to 9 months followed by
- 48 months during which they must have an interlock device installed in their vehicle, and
- A fine of 50 penalty units (currently $5,500).
Will a drink driving charge go on my criminal record?
Whilst generally, a drink driving charge will result in a criminal record, the courts have the discretion to issue non-conviction orders such as section 10 dismissals and conditional release orders without conviction. However, courts are unable to make section 10 conviction orders in circumstances where the individual has committed another major traffic offence in the previous 5 years.
Alcohol Interlock Program
An interlock is an electronic breath testing device connected to the ignition of the vehicle, meaning it prevents the vehicle from starting if alcohol is detected in the person’s breath. Expanded in 2021, this program applies to all individuals convicted of a middle-range or high-range driving offence and repeat offenders. For those charged with an offence requiring a mandatory interlock period, they will complete a licence disqualification period followed by a period in which they have an interlock device installed in their vehicle. The length of both the disqualification and interlock period varies dependent on the offence and the offender’s criminal history.
Exemption from an interlock order
In some circumstances, courts may issue an interlock exemption order if the individual can prove that:
- They don’t have access to a vehicle to install the device, or
- They have a medical condition that prevents them from being able to use the device
If a court has issued an interlock exemption order, that individual will:
- Have their licence cancelled and be disqualified from driving
- Must complete the Sober Driving Program at their own expense
- Must complete the disqualification period issued by the court before they can apply for a new licence
Key Takeaways
- NSW enforces strict drink driving penalties, categorized by blood alcohol concentration levels.
- Penalties range from fines, license disqualifications, to imprisonment, depending on the offense's severity.
- High-range offenses face the harshest penalties, including potential imprisonment.
- Refusal to take a breath test can result in similar severe penalties.
- An Alcohol Interlock Program is mandatory for certain offenses, requiring the installation of a device in the vehicle to monitor and prevent drink driving.
Burden of Proof
In NSW, drink driving charges are a strict liability offence, meaning the prosecution must only prove beyond a reasonable doubt that you were driving the vehicle and over the blood alcohol limit to be convicted of the offence. Individuals may be able to avoid being charged with the offence if they can raise a valid legal defence such as:
- They were not driving the vehicle
- They did not have alcohol in their system
- Police conducted the breath test for more than 2 hours since they were in control of a motor vehicle.
If you, or someone you know, have been charged with a drink driving offence, contact the team at Hamilton Janke Lawyers to receive expert legal advice and assist you in achieving the best possible outcome.
Written By
Drew Hamilton
Drew Hamilton is founding partner at Hamilton Janke Lawyers. Admitted to the Supreme Court of New South Wales as a Solicitor and also listed on the High Court of Australia register.
