The offence of Drink Driving is created under the Road Transport (Safety & Traffic Management) Act 1999 "The Act". It is an offence to do any of the following while there is present in a person's blood either the "low" (more than 0.05 but less than 0.08), "mid" (more than 0.08 but less than 0.15), or "high" (more than 0.15) range prescribed concentration of alcohol:
- Drive a motor vehicle.
- Occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion.
- Be the holder of a driver's licence and occupy the seat in a motor vehicle next to the holder of a learner licence, who is driving the vehicle.
- Police have the power to breath test a person whom they have reasonable cause to believe was driving a car or occupying the drivers seat of a car in order to put it into motion.
Further, if a driver has been injured in an accident and receive treatment at hospital, the attending doctor must take a sample of that person's blood to be tested for alcohol.
Drink driving offences
Under the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (the Act), it is an offence for individuals with a prescribed blood alcohol concentration to: drive; attempt to drive; or occupy the seat next to the holder of a learner licence who is driving a vehicle. The Act identifies four categories of PCA offences:
- special range PCA applies to special category drivers with a blood alcohol concentration of between 0.02 and 0.049 g/100 ml ;
- low range PCA applies to drivers with a blood alcohol concentration of between 0.05 and 0.079 g/100 ml ;
- mid range PCA applies to drivers with a blood alcohol concentration of between 0.08 and 0.149 g/100 ml ;
- high range PCA applies to drivers with a blood alcohol concentration of over 0.15 g/100 ml.
Below is a table setting out the different categories of drink driving offences.
Maximum penalties and disqualification periods for PCA offences:
MONETARY PENALTY / IMPRISONMENT
|Special Range PCA & Low Range PCA (First Offence)
||Automatic 6 months minimum 3 months
|Special Range PCA & Low Range PCA (Second or Subsequent Offence)
||Automatic 12 months minimum 6 months
|Middle Range PCA (First Offence)
||$2,200.00 / 9 months
||Imprisonment Automatic 12 months minimum 6 months
|Middle Range PCA (Second or Subsequent Offence)
||$3,300.00 / 12 months imprisonment
||Automatic 3 years minimum 12 months
|High Range PCA (First Offence)
||$3,300.00 / 18 months imprisonment
||Automatic 3 years minimum 12 months
|High Range PCA (Second or Subsequent Offence)
||$5,500.00 / 2 years imprisonment
Automatic 5 years minimum 2 years
As you can see, the law distinguishes between first offences and second or subsequent offences. Under the Act, offences are considered second or subsequent if the person was convicted of a major traffic offence (including any PCA offence) in the previous five years.
Major offences include any offence under the Crimes Act 1900 (NSW), dangerous or negligent driving offences under the Act, PCA offences, driving under the influence of drugs, refusing to submit to testing for drugs or alcohol, or the aiding and abetting of the commission of any of the above crimes or offences.
The maximum penalties applicable to each category of drink driving offences are set out in the table above.
In addition to the penalties outlined above, s 24 of the Road Transport (General) Act 1999 allows a court to disqualify from driving any person convicted of a major traffic offence under the Act. Section 25 provides that persons convicted of certain major offences (including any PCA offence) are automatically disqualified. A court may, however, order a longer or shorter disqualification period than the minimum disqualification periods specified by the legislation. The disqualification periods for each category of PCA offence are set out in the table above.
Driving under the influence of a drug or alcohol
It is also an offence to drive under the influence of alcohol or under the influence of a drug being a prohibited drug or drug for the purposes of The Act. For the offence of Driving Under the Influence of Alcohol the Police do not need to prove that a person was driving with any of the prescribed concentrations of alcohol in their blood. In other words, rather than the person being arrested and undergoing a breath test on a device that gives a reading (high mid or law), or as a result of a blood sample taken by a doctor in a hospital following an accident; the police may allege the driver was affected based upon their observations of the person, for example smelt of intoxicating liquor, was unsteady on their feet…."
Drive under the influence following police urine or blood tests
The legislation also allows police, in certain circumstances to demand a driver to supply blood or urine samples. A person may also be charged with drive under the influence as a result of this process. The maximum penalty for Driving under the Influence of a drug or alcohol is 9 months imprisonment and or a fine of $2,200.00. The maximum disqualification period is 12 months.
The Guideline judgement
Due to the prevalence of high range drink driving offence and the resultant danger that people who are effected by alcohol whilst driving pose to themselves and the broader community, the NSW Supreme Court of Criminal Appeal handed down a judgement in 2000 that in essence sets a guideline' for magistrates sentencing people in the Local Court charged with High Range PCA.
The reality is that Magistrates follow the guideline closely and as a result, great care must be taken to present the person's case in a high range offence so that the best outcome can be achieved working within the guideline.
(1) An ordinary case of the offence of high range PCA is one where:
(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
(ii) the offender was detected by a random breath test;
(iii) the offender has prior good character;
(iv) the offender has nil, or a minor, traffic record;
(v) the offender's licence was suspended on detection;
(vi) the offender pleaded guilty;
(vii) there is little or no risk of re-offending;
(viii) the offender would be significantly inconvenienced by loss of licence.
(2) In an ordinary case of an offence of high range PCA:
(i) an order under s 10 of the Sentencing Act will rarely be appropriate;
(ii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver's education or awareness course;
(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification;
(iv) a good reason under;
(iii) may include:
(a) the nature of the offender's employment;
(b) the absence of any viable alternative transport;
(c) sickness or infirmity of the offender or another person.
(3) In an ordinary case of a second or subsequent high range PCA offence:
(i)an order under s 9 of the Sentencing Act will rarely be appropriate;
(ii) an order under s 10 of the Sentencing Act would very rarely be appropriate;
(iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.
(4) The moral culpability of a high range PCA offender is increased by:
(i) the degree of intoxication above 0.15;
(ii) erratic or aggressive driving;
(iii) a collision between the vehicle and any other object;
(iv) competitive driving or showing off;
(v) the length of the journey at which others are exposed to risk;
(vi) the number of persons actually put at risk by the driving.
(5) In a case where the moral culpability of a high range PCA offender is increased:
(i) an order under s 9 or s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.
(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:
(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
(ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.
The ‘Interlock' program
If a person has been convicted of a drink driving offence (then disqualified) and is considered by the Court to be suitable, they may be permitted to get back on the road more quickly as part of the Roads & Traffic Authority ‘Interlock Program'.
An application is made to the sentencing court on the person's behalf by their lawyer. The court will decide who is eligible to enter the program. The court will issue two orders for eligible persons. The first order will specify the full disqualification period for the offence. The second order will specify:
- A reduced period of disqualification (the 'disqualification compliance period').
- An interlock participation period during which time the driver holds an interlock driver licence and is subject to certain licence conditions.
Participation in the program is voluntary. Those who do not obtain an interlock driver licence from the Roads and Traffic Authority (RTA) will be required to serve their full disqualification period.
However, it is conditional upon entry to the program that the person is examined by a medical practitioner and agrees to undertake a program resulting in the reduction of their alcohol intake.
What is an alcohol interlock?
An alcohol interlock device is an electronic breath-testing device connected to the ignition of a vehicle. The vehicle will not start unless the driver passes a breath test which is administered as the person attempts to start the ignition. It should be clearly understood however that there will always be a period of disqualification where the person will be off the road, even if the court makes an interlock order and there is a monthly fee for the management and upkeep of the interlock equipment.
Contact Sharon Ramsden on firstname.lastname@example.org or phone (02) 4626 5077.