DRINK DRIVING (PCA)

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How serious is a drink driving offence?

Driving under the influence of alcohol is a serious traffic offence. Apart from the obvious risk of crashing and the impact on other road users, getting caught or being convicted of this offence can have serious long term consequences such as loss of licence, impact on employment (ability to get to work and maintain your job) and your ability to care for dependents.

Drink Driving (PCA Offences)

Drink driving offences are also known as PCA offences. PCA means the prescribed concentration of alcohol. According to the Centre for Road Safety, drink driving is a factor in one in seven crashes in NSW that result in death and is therefore considered a serious offence by the courts.

Drink driving is not a criminal offence and will not be recorded on your criminal record. However,  it will be recorded on your traffic record and you may be required to declare your traffic history for employment purposes. 

From 20 May 2019, tougher penalties apply for lower range drink driving offences, and for driving with the presence of an illicit drug in your blood. 

The change is part of a number of reforms in the Road Safety Plan 2021 to reduce alcohol and drug-related trauma on NSW roads.

Many drivers follow the guideline:

Males = 2 standard drinks in the first hour and 1 standard drink every hour after

Females = 1 standard drink in the first hour and 1 standard drink every hour after.

However, this a guideline only, and cannot be relied on as a defence. Everybody reacts to and processes alcohol differently. Therefore, it is best not to consume alcohol if you will be driving. 

Fines issued by the Local Court are based on penalty units set out in Road Transport Act 2013 (NSW). Each penalty unit is worth $110. For example, 5 penalty units equal $550. If you are convicted of a drink driving offence, your licence suspension will become a licence disqualification. It is an offence to continue driving if your licence is suspended or you are disqualified from driving. See the Traffic Law link at the top of the page for further information about licence suspensions and disqualifications.

Blood Alcohol Limits

In NSW, the following blood alcohol limits have been set for licensed drivers.  

Novice drivers (learner and provisional licence holders) have a 0.00 blood alcohol limit.

Special category (professional drivers, e.g bus, truck, taxi, uber, etc) have a blood alcohol limit of 0.02

Class C licence holders (normal car and motorbike licence) have a blood alcohol limit of 0.05.

Police Roadside Powers

Police have a number of roadside powers when dealing with drink driving offences.

A police officer can suspend your licence on the spot for low range drink driving for 3 months and issue you with an on the spot fine of $581.

As of December 2018, a police officer can confiscate your number plate or impound your vehicle for up to 3 months if you are a repeat high risk drink driving offender. You are a repeat high risk drink driving offender if you have had a previous drink driving conviction in the previous 5 years. If your number plates are confiscated, you will need to organise for the vehicle to be towed from the location as the vehicle cannot be driven without its number plates. You will be required to cover the cost of towing fees. If you are a disqualified driver at the time of the offence, the police officer can confiscate your number plate or confiscate your vehicle for up to 6 months. If you have committed a second and subsequent offence, the vehicle can be confiscated and sold by the Crown. 

If you refuse a roadside breath test, you can be arrested and taken to the local police station for a breath analysis.

Alcohol offences, disqualification and imprisonment for:

A BAC of more than 0 grams but less than 0.02 grams of alcohol in 210 litres of breath or 100 milligrams of blood.

If you are a novice driver who has consumed alcohol, you must not:

Drive a motor vehicle, or

Occupy the driving seat of the motor vehicle and attempt to put the motor vehicle in motion

The maximum penalty is a fine of $2,200 (1st offence) or $3,300 (2nd or subsequent offence)

The licence disqualification period for this offence is:

If you have not committed a major traffic offence in the previous 5 years, the court has the discretion to order:

An automatic disqualification of 6 months, or

If the court thinks fit, a disqualification of 3 months (but no shorter)

If you have committed a major offence in the previous 5 years:

An automatic licence disqualification of 12 months, or

If the court thinks fit, a licence disqualification of 6 months (but no shorter)

A BAC of 0.02 grams or more, but less than 0.05 grams of alcohol in 210 litres of breath or 100 milligrams of blood.

If you are a special category driver who has consumed more than 0.02 grams of alcohol, you must not:

Drive a motor vehicle, or

Occupy the driving seat of the motor vehicle and attempt to put the motor vehicle in motion

Occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle

The maximum penalty is a fine of $2,200 (1st offence) or $3,300 (2nd or subsequent offence)

The licence disqualification period for this offence is:

If not committed a major traffic offence in the previous 5 years, the court has the discretion to order:

An automatic licence disqualification of 6 months, or

 If the court thinks fit, a licence disqualification of 3 months (but no shorter)

If a previous major offence has been committed in the previous 5 years:

An automatic licence disqualification of 12 months, or

If the court thinks fit, a licence disqualification of 6 months (but no shorter).

A BAC of 0.05 grams or more, but less than 0.08 grams of alcohol in 210 litres of breath or 100 millilitres of blood

If you are a driver who has consumed more than 0.05 grams of alcohol, you must not:

Drive a motor vehicle, or

Occupy the driving seat of the motor vehicle and attempt to put the motor vehicle in motion, or

Occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

The maximum penalty is a fine of $2,200 (1st offence) or $3,300 (2nd or subsequent offence)

The licence disqualification period for this offence is:

If you have not committed a major traffic offence in the previous 5 years, the court has the discretion to order:

An automatic licence disqualification of 6 months, or

If the court thinks fit, a licence disqualification of 3 months (but no shorter)

If a previous major offence has been committed in the previous 5 years:

An automatic licence disqualification of 12 months, or

If the court thinks fit, a licence disqualification of 6 months (but no shorter).

 

A BAC of 0.08 grams or more, but less than 0.15 grams of alcohol in 210 litres of breath or 100 milligrams of blood

If you are a driver who has consumed alcohol resulting in a blood alcohol content between 0.08 grams and 0.15 grams of alcohol must not:

Drive a motor vehicle, or

Occupy the driving seat of the motor vehicle and attempt to put the motor vehicle in motion

Occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle

The maximum penalty is a fine of $2,200 or 9 months imprisonment or both for a first offence. If it is a second or subsequent offence, the maximum penalty is a fine of $3,300 or 12 months imprisonment or both.

The licence disqualification period for this offence is:

If you have not committed a major traffic offence in the previous 5 years the court has the discretion to order:

An automatic licence disqualification of 12 months, or

If the court thinks fit, a licence disqualification of 6 months (but no shorter).

A BAC of 0.15 grams or more of alcohol in 210 litres of breath or 100 milligrams of blood

If you are a driver who has consumed alcohol resulting in a blood alcohol content of more than 0.15 grams must not:

Drive a motor vehicle, or

Occupy the driving seat of the motor vehicle and attempt to put the motor vehicle in motion

Occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle

The maximum penalty for this offence is a fine of $3,300 or 18 months imprisonment or both for a first offence. If it is a second or subsequent offence, the maximum penalty is a fine of $5,500 or 2 years imprisonment or both.

The licence disqualification period for this offence is:

If you have not committed a major traffic offence in the previous 5 years:

An automatic licence disqualification of 12 months

If it is a second or subsequent offence, an automatic licence disqualification of 2 years.

Accidents and drink driving

If you have an accident and you are under the influence of alcohol at the time of the offence, you will not only risk drink driving charges, you may risk further serious charges. Dangerous driving offences involving drink driving and resulting in death or grievous bodily harm, are criminal offences. 

Dangerous driving occasioning death:

If you are driving a vehicle and you are involved in a car accident causing the death of another person and, at the time of the car accident, you were:

Under the influence of intoxicating liquor or a drug; or

Driving at a speed dangerous to another person or persons; or

Driving in a manner dangerous to another person or persons,

You are guilty of an offence.

The maximum penalty for this offence is imprisonment for 10 years.

Aggravated dangerous driving occasioning death:

If dangerous driving occasioning death occurs in circumstances of aggression, the maximum penalty is 14 years imprisonment.

Aggravating circumstances include but are not limited to:

1. element and nature of injuries inflicted

2. number of people put at risk

3. degree of speed

4. degree of intoxication or of substance abuse

5. erratic or aggressive driving

6. competitive driving or showing off

7. length of the journey during which others were exposed to risk

8. ignoring warnings

9. escaping police pursuit

10. degree of sleep deprivation

11. failing to stop

Dangerous driving occasioning grievous bodily harm:

If you are driving a vehicle and you are involved in a car accident causing grievous bodily harm to another person and, at the time of the car accident, you were: 

Driving under the influence of intoxicating liquor or of a drug, or

At a speed dangerous to another person or persons, or 

In a manner dangerous to another person or persons,

You are guilty of an offence.

The maximum penalty for this offence is 7 years imprisonment.

Local Court options

Alcohol Interlock

For high range and mid range PCA offences and second or subsequent PCA offences, the court may order a driver to enrol in the alcohol interlock program and have a device fitted to their vehicle. The interlock program impacts on the disqualification period a court may set. 

Alcohol interlocks are fitted to your vehicle at your own expense. The average cost of installing an interlock device is $2,200 to $2,500 per year. There may be additional ongoing maintenance costs.

For further information about the program, including how to have a device fitted to your vehicle, contact Jameson Law or RMS.

Traffic Offenders Program

You may be eligible to have your matter adjourned so that you can attend a recognised traffic offenders program. Attending a program shows the court you are remorseful for your conduct and successful completion of a program may result in a reduced total disqualification period.

Section 10

A section 10 is the best possible outcome in the event the court finds you guilty of a low range, special range or novice drink driving offence. The courts will not grant a section 10 for mid range or high range drink driving offences. 

There are three orders available to the court under section 10 of the Crimes (Sentencing and Procedure) Act where the court believes it is inappropriate to further punish an offender.

  • Section 10 (1) (a)- dismissal with no conviction recorded
  • Section 10 (1) (b)- dismissal with no conviction on conditions set by the court. For example, not to commit an offence for a period of two years 
  • Section 10 (1) (c)- dismissal with no conviction on the condition that the offender enters into an intervention program. For example drug and alcohol counselling. 

A section 10 is an acknowledgement of the court that you have committed an offence, however, the court is satisfied that it is out of character and you are unlikely to continue offending. It’s the court’s way of giving you a second chance.

Before granting a section 10, the court will consider:

  • Your traffic history 
  • Your character, antecedents, age, heath and mental condition, etc
  • The trivial nature of the offence
  • Extenuating circumstances that lead to the offence being committed 
  • Any other matter the court considers relevant

Disclaimer

The above is general legal information and should not be considered legal advice. You should speak with one of our criminal lawyers for legal advice tailored to your specific legal matter. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.

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Arrested for high range PCA driving Our client is a single mother from north-west Sydney was signalled to partake in a mobile breath test where she recorded a positive result. Her breath analysis later returned a result of 0.211, and she was subsequently arrested for high range PCA driving. She …

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Frequently Asked Questions.

No. It is an offence to refuse a roadside breath test. It can result in being arrested and conveyed to the police station for a breath analysis. Refusal to take a breath test is treated the same as high range PCA and has the same penalties. Therefore, if you refuse a roadside breath test and subsequent breath analysis, you will be charged and prosecuted as if you had committed a high range drink driving offence.

If you are not the owner of the vehicle, the Police cannot apply for a roadside vehicle sanction. However, the Roads and Maritime Service (RMS) can issue a suspension warning on the vehicle. If the vehicle is used for a second offence, the vehicle’s registration can be suspended for 3 months.

Yes. A bicycle is classified as a vehicle under the Road Transport Act. The same road rules apply to cyclists, you can be stopped by police and breath tested regardless of whether you are riding on a footpath or the road. If you return a positive breath test, you will be issued with an infringement notice. The maximum penalty for this offence is a fine of $3,300, 18 months imprisonment or both. If you fail to pay the fine, the matter will be referred to Revenue NSW and they may apply to have your driver’s licence suspended. While the fine may vary, being in control of anything that uses wheels, tracks, runners etc to move, while under the influence of alcohol is an offence. That includes converted esky’s, bulldozers, light rail, etc.

BAC stands for Blood Alcohol Concentration and refers to the percentage of alcohol found in your blood.

Your first and foremost action should be to seek legal advice. Driving under the influence (DUI) is a common offence, but it is one which carries a large burden with it. It is a dangerous and reckless decision to drive a motor vehicle when suffering from an impairment such as alcohol or drugs.

Hypothetical scenario 

Sylvia has had a long day at work and she decides to stop at a wine bar on the way home. The scenery is beautiful looking out over the New South Wales  (NSW) coast and she finds herself lost in her thoughts. The waiter brings over a glass of wine and then another and another until Sylvia can’t quite remember how much she has had. She thinks she will be right to drive given she ate a big lunch and she feels unaffected by the alcohol. 

Sylvia pays her bar tab and then proceeds to drive home. She turns into her street and notices that the police are parked halfway down the left-hand side of the road. The motion for her to pull over and show them her driver’s licence. Sylvia is then randomly breathalyzed. Sylvia knows that she will fail her breath test. The police officer returns and tells Sylvia that she has blown over the limit and that she is going to be charged with mid-range drink driving. 

Sylvia’s breath analysis showed that she had blown a blood alcohol level of 0.254 and was automatically handed a licence disqualification period. 

As you would be aware, the prescribed concentration of alcohol which is allowed to be in a fully licenced driver’s system is 0.05. If you are charged with a drink driving offence and your alcohol reading is classified as mid to high range then you are likely to receive a period of disqualification.

If you do find yourself in this situation, seek legal advice immediately.

The short answer… they are both as serious as each other.  If you choose to drive a motor vehicle with a blood alcohol concentration higher than 0.05 or with the presence of drugs in your system then you are committing a DUI offence. Choosing to drive while suffering from an impairment reduces your ability to see, hear and react appropriately to an incoming collision or obstacle.

If you are found guilty of your offence then you will receive a punishment or sentence. Depending on the severity of the crime and the circumstances surrounding it, will depend on the severity of the punishment. These punishments range from a fine, suspended sentence or perhaps even a term of imprisonment, however, the following are the most likely scenarios.

Alcohol Interlock Device

A motor vehicle interlock is a device which when fitted into the vehicle, prevents it from being turned on unless someone breathes into the device. The device will measure the blood alcohol concentration (BAC) of your breath to see whether you have been drinking. The device will not allow you to start the vehicle with a blood alcohol concentration over 0.00. This is a common punishment fitted for repeat offenders. If you are granted an interlock order, it is extremely important not to abuse the power. In some circumstances, people have had sober individuals blow into the device so that the vehicle will start. This is a subsequent offence and you can be charged. You will also no longer be eligible for the interlock program.

Licence Suspension 

A driving offence will almost always result in a period of disqualification. Whether this be the minimum period of 3 months or a more severe sentence. This is the only means of preventing you from re-offending because you are unable to legally drive a vehicle. 

If you are a learner driver, you will most likely lose your licence automatically and will not be eligible for any form of exemption.

Loss of Demerit Points 

It is unavoidable that a traffic offence will result in a loss of demerit points. The maximum penalty will see you lose all your demerit points and you will have your licence disqualified. 

Period of imprisonment 

Depending on the severity of your offence, or whether this is your first offence, second offence, or subsequent offence, you may be required to serve a term of imprisonment. This is an unlikely sentence if it is your first offence, however, drug driving or drink driving is an extremely dangerous offence. If you have illicit drugs in your system when you are driving, your ability to function can be severely impaired. Whilst this is the same for drink driving, drugs impair your vision, mobility and reflexes in a different way alcohol and severely impairs your judgement.

If someone is under the influence, they will show identifiable signs which are obvious to the police. This will include potential slurred speech, bloodshot eyes, glazed eyes, shaky hands, and agitation or aggression. If you or someone you know is displaying any of these signs then it is unsafe for you to drive a motor vehicle.

If you have committed a traffic offence then you need to consult a lawyer who is specialized in traffic law. Road safety is a comprehensive and rapidly changing area which differs from state to state. The laws in Victoria may not be the same laws which apply in Sydney. Sometimes the rules can be slightly different but it can mean the difference between offences. A traffic lawyer will be able to explain the key elements of criminal law which apply to your situation and help you build a defence for your actions. 

It is always best to seek legal advice for a criminal matter. It not only shows the judge that you are taking the process seriously but it also shows that you are remorseful for your actions.

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