Drink Driving

Drink driving includes driving with a prescribed concentration of alcohol (PCA) in your breath or blood. Section 110 of the Road Transport Act 2013 (NSW) creates the novice, special, low, middle and high range offences. The applicable limit depends on your licence and driving activity, not whether you felt affected.

Driving under the influence under section 112 is a separate offence. This guide concerns alcohol PCA charges, not combined drug and alcohol offences, which have different penalties. Check the charge on your court attendance notice.

The prosecution must prove the elements of the charged offence beyond reasonable doubt. Generally, it must establish your identity, the relevant driving conduct and the prescribed alcohol concentration at that time. Section 110 also covers occupying the driving seat and attempting to put a vehicle in motion. Some provisions cover supervising a learner driver.

The evidence may include police observations, admissions, breath analysis certificates, blood analysis and evidence about when driving stopped. Novice and special range charges require the relevant driver or supervisor category. The legal rules governing collection and use of samples are important; a roadside screening result is not the whole prosecution case.

Section 108 defines the ranges. Blood figures below are grams of alcohol per 100 millilitres of blood; corresponding breath limits are grams per 210 litres of breath. Novice and special range rules apply only to specified drivers or supervisors.

These are court maximums, not predictions. Section 110 expresses fines in penalty units; one NSW penalty unit is $110 under section 17 of the Crimes (Sentencing Procedure) Act 1999. First or subsequent classification depends on the statutory rules in section 9 of the Road Transport Act, not merely whether this is your first PCA charge.

Disqualification is separate from a fine or prison sentence. Section 205 provides ordinary conviction-based periods. The table shows minimum and automatic periods where an interlock order does not apply, including where an exemption is granted.

An automatic period applies if the court does not make a specific disqualification order. The first novice, special or low range maximum is 6 months; other listed categories have no statutory maximum period under these ordinary provisions. Police suspension and court disqualification are different decisions. Do not drive while suspended, and do not assume you can drive immediately after a court date.

Sections 209–212 govern mandatory alcohol interlock orders. Generally, convictions for middle and high range PCA and repeat novice, special or low range PCA require an order unless a statutory exemption applies.

For first time mid range offences, upon conviction, the court will make an interlock order for 12 months, unless a statutory exemption applies. After you have served your disqualification period of between 3 and 6 months, you will need to reapply for your driver's licence and have an interlock device installed in your car. Only one car can have the device installed, and it will need to be your primary vehicle. That interlock device will remain for a period of 12 months.

An interlock device, or ignition interlock, is an electronic breath-testing unit wired directly to a vehicle's ignition system.

For a second offence mid range PCA within a 5 year period, the disqualification period increases to between 6 and 9 months, with a 24-month interlock period. First time high range PCA carries between 6 and 9 months disqualification with a 24-month interlock duration. High range PCA with a previous major offence that makes it a second or subsequent offence carries between 9 and 12 months disqualification and a 48-month interlock period.

If you seek to opt out, you must obtain an interlock exemption from the court. The grounds include proving no access to a vehicle that can have the device installed, or a medical condition preventing you from providing a sufficient breath sample, with no reasonably practicable way to modify the device. Other statutory restrictions apply. Needing to drive for work is not enough. Opting out means significantly longer disqualification under the ordinary table above; it is not permission to drive without an interlock.

A lawyer can examine whether the prosecution can establish driving, the charged range and the admissibility of testing evidence. Relevant issues may include the timing of driving and testing, the testing powers used and the accuracy of the material relied upon. A possible issue is not necessarily a defence.

Section 110(9) provides a specific novice range defence concerning alcohol not caused by drinking an alcoholic beverage, except religious observance, or using another substance for the purpose of consuming alcohol. Its detailed requirements must be considered. Feeling sober, needing a licence or having no previous conviction does not by itself answer a PCA charge.

If the evidence supports a guilty plea, preparation may address the agreed facts, driving history, rehabilitation and personal circumstances. A dismissal or conditional release order without conviction under section 10 of the Sentencing Procedure Act may be considered where legally available. It is discretionary, and its availability and licensing effect require advice in the particular case.

In our experience, achieving a non conviction for high range offences are rare and exceptional. Non convictions are possible for mid range PCA offences, depending on the reading, manner of driving, road conditions, any mitigating factors and the distance driven.

Read the court attendance notice and arrange representation before the listed date. At the first appearance, the court may consider an adjournment for advice, receive a plea or give directions for a defended hearing.

If you plead not guilty, the prosecution presents its evidence at a hearing and witnesses may be questioned. If you plead guilty or are found guilty, the court considers sentence and the applicable licence orders. Bring the notice, police facts, traffic record and any suspension paperwork. Discuss proposed references or treatment material with your lawyer rather than assuming particular documents will change the result.

Losing a licence can affect work, caring responsibilities and access to appointments. A conviction may also have employment, insurance or travel implications. Those consequences depend on the organisation or jurisdiction involved.

Plan alternative transport while the matter is unresolved. Check your licence status with Transport for NSW before returning to driving, including any interlock licence requirements. Keep copies of court orders and ask about any obligation you do not understand.

No. Imprisonment is available for middle and high range PCA, but the maximum does not determine an individual sentence. The court assesses the offence, the applicable law and your circumstances.

Not if your licence is suspended or otherwise invalid. Arrange transport and obtain advice about your actual licence status before driving.

No. An interlock order includes an initial disqualification period followed by a restricted licensing period. Completing the court appearance does not authorise immediate driving.

Some first lower-range matters can be dealt with by penalty notice and suspension. Paying, electing court and challenging a suspension are different steps with different risks and time limits. Seek advice before choosing.

A criminal lawyer can review the charge and testing documents, explain the applicable penalty and licence regime, advise on a plea and prepare the matter for court. Representation can also help identify the practical evidence needed for sentencing or an interlock exemption application.

Contact Austere Legal about your notice, court date and licence concerns. Advice should be based on your actual papers rather than a comparison with another person's case.

This information is general in nature and does not constitute legal advice. The appropriate approach to a drink driving matter depends on the circumstances of each individual case.