I've Been Charged with a Drink Driving Offence in NSW, What Will Happen, What's the Penalty & What Do I Do?

Introduction

Facing drink driving charges in New South Wales (NSW) is a serious criminal law matter with potentially significant consequences. This comprehensive guide, informed by the latest NSW laws and regulations, aims to demystify the process, explain your options if you have been caught drink driving, and highlight the importance of seeking expert legal assistance.

What is a Drink Driving Offence?

Drink driving encompasses various offenses under the Road Transport Act 2013 (NSW), primarily focusing on driving a motor vehicle with a blood alcohol concentration (BAC) over the legal limit. Additionally, driving under the influence (DUI) of alcohol, even without a specific BAC reading, is an offence. This could apply even if you are minimally affected by alcohol while driving.

Levels of Drink Driving

There are six main types of drink driving charges, each with different BAC thresholds and penalties:

• High Range Drink Driving Offence: BAC of 0.15g or more.
• Mid-Range Drink Driving Offence: BAC between 0.08g and 0.149g.
• Driving Under the Influence (DUI) Offence: No BAC reading required; focus is on observable impairment due to alcohol. This charge is often laid when it's not possible to obtain an accurate BAC reading, such as when a person is injured in an accident or over two hours have passed since they last drove. Evidence for a DUI charge often relies on police observations of the driver's behaviour, speech, and physical appearance.
• Low Range Drink Driving Offence: BAC between 0.05g and 0.079g.
• Special Range Drink Driving Offence: BAC between 0.02g and 0.049g (applies to Learner, P1, or P2 license holders).
• Novice Range Drink Driving Offence: BAC over 0 and up to 0.019g (applies to Learner, P1, or P2 license holders).

Remember, even a small amount of alcohol can impair your judgment and reactions, making it crucial to plan alternative transport if you intend to drink.

Drink Driving and Young/Inexperienced Drivers in New South Wales

Young and inexperienced drivers, especially those on learner (L) or provisional (P1 and P2) licenses, face a zero-tolerance policy for alcohol. This means that any detectable amount of alcohol in their system while driving is a criminal offence. The consequences of a drink driving conviction can be especially harsh for young drivers, as it can affect their future job prospects, travel plans, and ability to obtain certain licenses.

Police Powers and Procedures in Drink Driving Cases in New South Wales

NSW Police have broad powers to enforce drink driving laws. They can stop any vehicle at random to conduct a breath test, and they can also require you to stop if they suspect you are driving under the influence. If you are on a road, seated in the driver's seat, and attempting to put the vehicle in motion, even if not actively driving, the police can also ask you to take a breath test.

If a roadside breath test indicates you are over the limit, you will be arrested and taken to a police station or mobile unit for a breath analysis. Refusing or failing to provide a breath sample or blood sample when requested is a separate offence with serious penalties.

Immediate Consequences: Police Licence Suspension for Drink Driving

If charged with a drink driving offence in NSW, the police can immediately suspend your license. For first-time low-range, novice, or special range offenders, this often comes with an on-the-spot fine. However, you can choose to contest this in court. This is known as "court electing." If you are charged with a mid-range or high-range offence, you will be required to attend court.

Important Note: Driving while disqualified from driving is a separate offence with severe penalties.

Penalties for Drink Driving in NSW

The penalties for drink driving in NSW vary significantly depending on the specific offence and your driving history. These can include:

• Fines: Ranging from hundreds to thousands of dollars.
• Licence Disqualification: Periods can range from 3 months to 5 years.
• Imprisonment: Possible for mid-range and high-range drink driving offences, especially for repeat offenders.
• Alcohol Interlock Program: Mandatory for some offences, requiring the installation of a device that prevents your car from starting if alcohol is detected on your breath. Drivers convicted of mid or high range drink driving, driving under the influence, or combined drink-and-drug driving offenses will be subject to a mandatory interlock order.
• Criminal Conviction: Unless the court grants a non-conviction order (section 10 dismissal or conditional release order), you will receive a criminal record. This conviction can have far-reaching consequences, including limiting employment opportunities, affecting travel plans, and potentially impacting family law proceedings.

Alcohol Interlock Program and Exemptions

The Alcohol Interlock Program is a mandatory program for specific drink driving offences, requiring the installation of a breath-testing device in your vehicle. While participation in the program can lead to shorter disqualification periods, it also comes with costs and strict monitoring. In limited circumstances, you might be eligible for an exemption from the interlock program, but this usually results in a longer disqualification period and requires a strong case for exemption.

It's important to understand that the court will consider various factors when deciding your penalty, including your BAC level, driving history, circumstances of the offence, and personal circumstances (e.g., employment, family responsibilities).

What Must be Proved for a Drink Driving Charge in NSW?

To secure a conviction, the prosecution must prove beyond reasonable doubt that you were:

1. Driving or in control of a motor vehicle.
2. Over the legal alcohol limit for your license type at the time of driving.

Breath or blood tests are typically used as evidence, but police observations and witness accounts can also be considered.

Defences to Drink Driving Charges in NSW

Although most cases result in a guilty plea, there are potential defences:

• Unsafe Reading: Arguing that your BAC was lower at the time of driving than when tested. This defence often involves obtaining a pharmacological report to assess your likely BAC at the time of the offence, considering factors such as the number and type of drinks consumed, time of consumption, food intake, and individual characteristics.
• Two-Hour Rule: If the breath test was conducted more than two hours after driving, the results may be inadmissible.
• Home Safely Rule: Police cannot require you to take a breath test at your home.
• Honest and Reasonable Mistake of Fact: You genuinely and reasonably believed you were under the limit. This defence can be challenging to prove, but it may be applicable in situations where you relied on inaccurate information about alcohol consumption or if your drink was spiked.
• General Legal Defences: Such as duress, necessity, or automatism.

These defences are complex and require expert legal advice to assess their applicability in your case.

Pleading Guilty or Not Guilty to Drink Driving Charges

• Guilty Plea: This means you accept the charge and proceed to sentencing, where the magistrate determines the penalty. Pleading guilty early in the process can sometimes result in a reduced sentence, as it demonstrates remorse and acceptance of responsibility.
• Not Guilty Plea: You dispute the charge, leading to a hearing where evidence is presented and the magistrate decides your guilt. If you believe the prosecution's case is weak or you have a valid defence, pleading not guilty may be the right choice.

Your lawyer can advise you on the best course of action based on the strength of the evidence and potential defences.

Appealing an Immediate Police Suspension

If your license was suspended at the roadside, you can appeal this within 28 days. While the suspension remains in effect during the appeal process, the magistrate may overturn it under "exceptional circumstances." Legal advice is essential for a successful appeal.

Consequences of Driving While Disqualified

Driving while disqualified is a severe offence with its own set of penalties, including fines, imprisonment, and further disqualification. The minimum disqualification period for a second or subsequent offence is 6 months, and it can extend up to 5 years.

How Much Can I Drink Before Driving in New South Wales?

It's illegal to drink alcohol while driving in NSW, which can result in a DUI offence, even without proof of your level of impairment. The amount of alcohol you can consume before driving safely varies based on factors like your age, gender, weight, and food consumption. To stay under the legal limit, general guidelines suggest a maximum of two standard drinks in the first hour and one standard drink every hour after that for men, and one standard drink in the first hour and one every hour after that for women. It's always best to err on the side of caution and avoid driving if you plan to drink any alcohol.

Drink Driving Statistics and the Dangers of Alcohol-Impaired Driving

Drink driving is a major contributor to road accidents and fatalities in NSW. According to NRMA, nearly 20% of all fatal crashes in 2021 involved alcohol. Studies show that even a small amount of alcohol can impair your driving abilities, increasing the risk of accidents. It's crucial to understand that driving under the influence puts not only your own life at risk but also the lives of other road users.

What are the Penalties for Drink Driving in NSW?

Penalties for High Range Drink Driving in New South Wales

A high-range BAC reading of 0.15g or more while driving attracts heavy penalties with a criminal conviction unless the court orders a section 10 dismissal or Conditional Release Order without conviction sentence.

Mid-Range Drink Driving Offence

If you have a mid-range BAC reading at the time of driving (0.08 but less than 0.15), you may face the following maximum penalties if the court convicts you and you don't receive a non-conviction sentence:

• Fines:
  • First Offence: $2,200
  • Second or Subsequent Offence: $3,300
• Imprisonment:
  • First Offence: 9 months
  • Second or Subsequent Offence: 12 months
• Licence Disqualification:
  • First Offence: Minimum 3 months, maximum 6 months (with an additional 12-month interlock period if applicable) or automatic 12-month disqualification if exempt from interlock.
  • Second or Subsequent Offence: Minimum 6 months, maximum 9 months (with an additional 24-month interlock period if applicable) or automatic 3-year disqualification if exempt from interlock.

A person convicted of mid-range drink driving will usually be required to participate in the mandatory interlock program.

Low Range Drink Driving Offence in New South Wales

For a first low range drink driving offence (BAC between 0.05g and 0.079g), you may receive an on-the-spot fine and immediate 3-month licence suspension. This avoids court and a criminal conviction. However, for a second or subsequent offence, or if you choose to go to court (court-elect), you may face:

• Fines:
  • First Offence: $2,200
  • Second or Subsequent Offence: $3,300
• Imprisonment: No imprisonment for low range offences.
• Licence Disqualification:
  • First Offence: Automatic 6 months, reducible to 3 months.
  • Second or Subsequent Offence: Minimum 1 month, maximum 3 months (with an additional 12-month interlock period if applicable) or automatic 12-month disqualification if exempt from interlock.

Special Range and Novice Range Drink Driving Penalties in New South Wales

These offences apply to learner and provisional drivers with very low BAC readings (0.02-0.049 for special range, 0-0.019 for novice range). First offenders usually receive an on-the-spot fine and 3-month suspension. However, if it's a second or subsequent major traffic offence within five years, the penalties increase to include a potential interlock order.

Refusing a Breath Test in NSW

Refusing a breath test is a serious offence. For a first offence with no prior major traffic offences in the past 5 years, you could face a fine of up to $3,300 or imprisonment for up to 18 months, along with a 3-year disqualification (reducible to 12 months). Penalties are even harsher for second or subsequent offenders.

Driving Under the Influence (DUI) Offence in New South Wales

DUI charges apply when your driving is impaired by alcohol or drugs, even if your BAC is below the legal limit. The penalties are similar to high-range drink driving, with potential fines up to $5,500, imprisonment up to 2 years, and disqualification periods from 1 to 5 years, depending on whether it's a first or second offence.

Combined Drink and Drug Driving Offence

Driving with both alcohol and drugs in your system carries the harshest penalties. These can include fines of up to $11,000, imprisonment up to 2 years, and automatic disqualification periods of up to 6 years. The specific penalties depend on the combination of substances and whether it's a first or subsequent offence.

Do I Have to Go to Court for a Drink Driving Offence in New South Wales?

If it's your first low-range, novice, or special range drink driving offence, you might receive an on-the-spot fine and licence suspension, avoiding court. However, you can choose to "court-elect" and contest the charge. Second or subsequent offences, mid-range, high-range, DUI, and combined offences always require a court appearance.

What Happens in Court for a Drink Driving Offence?

If your case proceeds to court, you'll need to enter a plea of guilty or not guilty. If you plead guilty, the magistrate will proceed to sentencing, considering various factors to determine an appropriate penalty. If you plead not guilty, the matter will be set for a hearing where evidence from both sides is presented.

How Can a Drink Driving Lawyer Help Me?

An experienced drink driving lawyer can provide invaluable assistance, including:

• Advising you on the best course of action based on your specific circumstances.
• Representing you in court and negotiating with the prosecution.
• Helping you gather evidence and prepare your case.
• Arguing for a more lenient sentence, such as a non-conviction order.

Can I Avoid a Licence Disqualification for Drink Driving?

In some cases, it may be possible to avoid licence disqualification by receiving a non-conviction order, such as a section 10 dismissal or a conditional release order. This is more likely for first-time offenders with low-range PCA offences.

Conclusion

A drink driving charge in NSW carries serious consequences that extend beyond legal penalties. It can impact your employment, personal relationships, and ability to travel. However, understanding the law, your options, and the potential defences can help you navigate this challenging situation.

While the prospect of facing court and the associated penalties can be daunting, proactive steps such as enrolling in a Traffic Offenders Program (TOP) can demonstrate your commitment to responsible driving and potentially reduce the severity of your sentence. Remember, seeking expert legal advice is crucial to understanding your rights, exploring all available options, and achieving the best possible outcome for your case.

If you have been charged with drink driving, don't hesitate to contact our experienced traffic lawyers today for a free consultation. We can assess your specific circumstances, guide you through the legal process, and fight for your interests in court.

Frequently Asked Questions About Drink Driving Offences in NSW