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  • In New South Wales there are four categories of offence driving under the influence of alcohol or drugs:
  1. Prescribed Concentration of Alcohol (PCA);
  2. Driving under the Influence (DUI) can be charged for both alcohol or drugs where no test criteria is available and police rely (usually) on their own observations;
  3. Cannabis, speed/ice, MDMA/ecstasy, or cocaine in oral fluid, blood or urine; and
  4. Morphine in blood or urine.
  • PCA, DUI and other drug offences usually result in a criminal conviction being recorded.
  • A conviction can have serious consequences for future employment prospects and international travel.
  • Being represented by a lawyer can result in a marked improvement in the outcome of your case. We are skilled in identifying mitigating features (excuses and explanations) of a case to enable a magistrate to make an informed decision taking into account matters in your favour that may be considered relevant before imposing a penalty.
  • If it is your first drink-driving or drug-driving charge it is important to get references that give evidence about your good character. 
  1. References should include things like your community involvement and your need for a licence. They should be addressed to the Magistrate at the Local Court in which you will be appearing.
  2. It is important that the people providing the references are aware that you are facing a drink-driving charge.
  • It is important to be realistic about the possible outcome of your matter and to expect that you will usually be disqualified. 
  • Do not drive to court.

Low-range PCA – including novice and special range.
  • For a novice (new) driver there must be no alcohol in their system.
  • For special range PCA the prescribed BAC starts at 0.02. This includes bus or taxi drivers while they are driving a bus or taxi.
  • Special range PCA drivers will face an immediate suspension of their licence if they are found to be over the prescribed BAC.
  • A low-range PCA involves a blood alcohol concentration (BAC) starting at 0.05 but less than 0.08. 
  • The penalties are:
  1. $572 if a penalty notice is given;
  2. a maximum penalty of $2,200 for a first offence and 
  3. $3,300 for any subsequent offence.
  • The minimum licence disqualification is: 
  1. 3 months for a first offence or 
  2. 6 months for a second or subsequence offence.
  3. An interlock device order may reduce the disqualification period.
  • The maximum penalty that can be imposed is disqualification of your licence for such time as the magistrate sees fit. 
  • In the absence of a specific court order the automatic penalty that will be imposed is the disqualification of your licence for 6 months on a first offence and 12 months for a second or subsequent offence.
  • For second or subsequent offences you may be subject to alcohol interlock order.
  • An interlock device order may reduce the disqualification periods.

Mid-range PCA
  • For a person who is found to have a BAC of 0.08 but less than 0.15 the court can impose:
  1. a maximum fine of $2,200 for a first offence and 
  2. $3,300 for any subsequent offences. 
  • Your licence will be immediately suspended.
  1. The minimum disqualification period for a first offence is 6 months.
  2. The minimum disqualification period for a second or subsequence offence is 12 months.
  3. There is no maximum disqualification period – that period is at the court’s discretion.
  4. An interlock device order may reduce the disqualification period.
  • In the absence of a specific court order the automatic penalty that will be imposed is the disqualification of your licence for 12 months on a first offence and 3 years for a second or subsequent offence.
  • For first or subsequent offences you may be subject to alcohol interlock order.
  • A driver can also be imprisoned for a maximum of nine months for a first offence and 12 months for any further offences.

High-range PCA or refusal to undergo testing
  • Any person found to be driving a vehicle at 0.15 BAC or above or refusing a test can be fined:
  1. a maximum of $3,300 for a first offence and 
  2. $5,500 for any further offences.
  • Your licence will be immediately suspended.
  1. The minimum disqualification period for a first offence is 3 years.
  2. The minimum disqualification period for a second or subsequence offence is 5 years.
  3. There is no maximum disqualification period – that period is at the court’s discretion.
  4. An interlock device order may reduce the disqualification period.
  • A term of imprisonment can also be imposed up to:
  1. 18 months for a first offence and 
  2. 2 years for a subsequent offence.
  • In the absence of a specific court order the automatic penalty that will be imposed is the disqualification of your licence for 3 years on a first offence and 5 years for a second or subsequent offence.
  • For first or subsequent offences you may be subject to alcohol interlock order.

DUI: Drive under the influence of alcohol or another drug:
  • Any person found to be driving a vehicle under the influence of alcohol or drugs can be fined:
  1. a maximum of $3,300 for a first offence and 
  2. $5,500 for any further offences.
  • Your licence is subject to disqualification.
  1. The minimum disqualification period for a first offence is 12 months.
  2. The minimum disqualification period for a second or subsequence offence is 2 years.
  3. There is no maximum disqualification period – that period is at the court’s discretion.
  4. An interlock device order (for an alcohol DUI charge only) may reduce the disqualification period.
  • A term of imprisonment can also be imposed up to:
  1. 18 months for a first offence and 
  2. 2 years for a subsequent offence.
  • In the absence of a specific court order the automatic penalty that will be imposed is the disqualification of your licence for 3 years on a first offence and 5 years for a second or subsequent offence.
  • For first or subsequent offences you may be subject to interlock order (alcohol offences only).

Cannabis, speed/ice, MDMA/ecstasy, or cocaine in oral fluid, blood or urine while driving
  • Any person found to be driving a vehicle with these drugs in their system can be fined:
  1. $572 for a first offence dealt with by penalty notice;
  2. a maximum of $2,200 for a first offence;
  3. $3,300 for any further offences.
  • Your licence is subject to disqualification.
  1. If dealt with by way of penalty notice on a first offence, for 3 months.
  2. The minimum disqualification period for a first offence is 3 months.
  3. The minimum disqualification period for a second or subsequence offence is 6 months.
  4. The maximum disqualification period for first offence is 6 months.
  5. There is no maximum disqualification period for second or subsequent offences – that period is at the court’s discretion.
  • In the absence of a specific court order the automatic penalty that will be imposed is the disqualification of your licence for 6 months on a first offence and 12 months for a second or subsequent offence.

Morphine in blood or urine while driving
  • The same penalties apply as for cannabis, ice, etc above except that there is no option for police to deal with it by way of a penalty notice fine.
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FAQ

The following information applies in New South Wales. You need to check the legislation in your state or territory as legislation is different in each jurisdiction.

  • What is the procedure with regard to breath testing and being charged with drink-driving?
    • A police officer can require a motorist who is driving or has been driving to undergo a breath test. The manner of driving is no longer an issue as the police have wide ranging powers to make motorists submit to a random breath test.
    • If the breath test proves positive you would be arrested and taken to the nearest Breath Analysis Centre. This is usually a nearby police station. 
    • At the police station you will be required to provide a sample of your breath for analysis.
    • If that is over the limit for your class of licence you will then be charged with a drink-driving offence.

  • Do I have to submit to a breath test?
    • Yes. If a police officer requires you to undergo a breath test and you refuse you are committing an offence of ‘refuse breath test.’ 
    • Serious penalties are provided for refusing a breath test. 
    • If you have a medical condition that prevents you from completing the test you will have to present evidence to court to satisfy the magistrate of your condition. 

  • Will I lose my license?
    • All drink-driving offences upon conviction provide for license disqualification. The period of disqualification and the minimum amount of disqualification depends on the actual drink-driving charge you are facing. 
    • For certain offences the police will give an ‘on-the-spot’ suspension for the offences of:
    • DUI;
    • mid-range and high range PCA (.08 or greater);
    • refuse breath test or
    • refuse blood test. 
    • This suspension runs until you appear in court and have your matter dealt with. 
    • The court will usually take the period of the on-the-spot suspension into account when you are sentenced. 
    • In exceptional circumstances a court may record no conviction. As there is no conviction there is no period of disqualification.

  • My license was taken off me by police when they breath tested me. Can I get it back before the court hearing?
    • There are very limited grounds on which you can seek to have a police suspension lifted before the matter is dealt with in court. 
    • In these circumstances you should consult a lawyer to discuss the matter. 
    • The fact that you need a license for work would not be sufficient grounds to overturn the suspension.

  • Is there a work license?
    • There is no provision for work licenses in NSW. 

  • Under what circumstances are blood tests used?
    • Any driver who is taken to hospital following a motor-vehicle related incident will have to undergo a mandatory blood test. 
    • The police also have power to arrest a driver who is involved in a fatal accident or an accident which the police believe may become a fatal accident and subject the driver to a mandatory blood test.
    • Where a breath analysis indicates the driver is over the limit the police must advise the driver of their right to have a blood test. 
    • If a driver chooses to exercise this right the police will provide a blood testing kit. The kit contains a statement of the person’s right to have a blood test together with instructions to both the person and a doctor on the blood sampling procedures. Drivers must make their own arrangements to have the blood sample taken. 
    • Sometimes blood test results can result in a higher reading than preliminary breath test results.

  • Can I challenge the results of a breath test/blood test?
    • Most valid challenges concern the time the breath test or blood test was taken. 
    • There are time limits in which the police can breath test or blood test you. 
    • If the test is taken outside the time limit you may have a valid defence. 
    • Challenges based on the amount you have drunk being inconsistent with the breath test result are rare but can be possible. 
    • Any challenges to a breath test or blood test require complicated legal arguments. You should consult a lawyer before considering your options. 
    • There are circumstances where your excuse may be more appropriately used on a ‘guilty’ plea rather than at a contested hearing.

  • What happens at court if I admit the charge?
    • Before you attend court it is important to have obtained references from people who know what you are normally like and who can attest to your good character or any unusual circumstances surrounding the offence. 
    • If you have difficulty with public speaking you may wish to write a letter addressed to the magistrate explaining your actions on the day of the offence.
    • The court must look at all circumstances surrounding the offence before it determines a penalty. The circumstances include: 
    • your blood alcohol reading;
    • any particular reason why you chose to drive;
    • why you were stopped – was it a random breath test or were you involved in an accident;
    • whether the offence involved speeding or seriously bad driving and
    • whether the public was put at risk because of your actions.
    • The court is aware of the far-reaching effects of license disqualification. Any significant effect this may have on you, your employment or other people who rely on you such as an ill family member should be mentioned to the court.
    • Your employment may depend upon a licence. However this does not automatically mean you will keep your licence. 
    • Your income is also a relevant feature in assessing the amount of the fine.

  • What is an Interlock Device?
    • An interlock device is a barrier installed in a person’s car that stops them driving if they have consumed alcohol. The purpose of the device is to enable repeat offenders to be able to drive a vehicle during the normal period of disqualification. 
    • There is a standard mandatory period of disqualification following which a successful applicant can drive a vehicle fitted with an interlock device. 
    • The period that the driver has to drive with an interlock device is governed by the nature of the offending PCA and prior offences.
    • The cost of fitting the alcohol interlock device will be the driver’s responsibility but a concession scheme is available to eligible concession-card holders.
    • While subject to the alcohol interlock scheme a driver can only drive a vehicle fitted with the device.

  • What does driving under the influence of drugs mean?
    • Drug saliva tests can detect cannabis and amphetamines such as speed or methamphetamines such as ice. 
    • Where a roadside test is positive police have the power to conduct either a further saliva test or a blood test. 
    • Drivers may face charges of driving under the influence or a new offence of driving with a prescribed drug in oral fluid or blood. 
    • Before charges can be laid the presence of drugs must be confirmed by laboratory testing. 
    • The saliva test is mandatory and there are penalties for drivers who refuse to co-operate. 

  • When is a jail sentence imposed?
    • Jail is a real prospect for repeat offenders and those who are charged with criminal driving offences that have caused serious injury to innocent parties. 
    • There have been jail sentences imposed for first offenders who have had a very high blood alcohol reading and who have been involved in an accident.

  • Will I have a criminal record?
    • If you are convicted of any of the drink driving offences and are required to pay a penalty you will have a criminal record.

Q&A

  • Should I get a lawyer?

    Question

    Last weekend I was breath tested coming back from my girlfriend’s house and I was right on .05 but the police still charged me with low range PCA. I had three white wines over about two hours. I don’t normally drink and drive but we had an argument and my girlfriend asked me to leave and I felt fine to drive. I didn’t really think I’d be stopped anyway because my house is only two kilometres from hers. I’ve just started a new job which involves meeting clients at various locations and I’m worried about losing my licence. I’m 30 and have been driving for six years and this is my first offence. I’m wondering if it’s worth getting a lawyer.


    Answer

    You can legally drive with an alcohol concentration up to .05. Once you hit that mark police are required to charge you.

    • However a blood alcohol reading at the start of the low range, the fact there was no accident and you have no other convictions for similar offences are key elements in your favour.
    • Even a low range is a serious offence and if your licence is crucial to keeping your job it may be worth the money to engage a lawyer to maximise chances of a good result.

  • Should my son agree to an interlock device?

    Question

    My son is 35 and facing his third drink driving charge. He is not an alcoholic but tends to turn to alcohol during times of stress. He and his wife have a disabled son which often puts a great deal of pressure on his marriage. This time he was caught driving with mid-range PCA .09 after a few drinks with colleagues after work which extended into a party. I’m not only worried he’ll lose his licence for an extended period but also that he might go to jail. His lawyer has suggested he agree to a program which I understand involves an alcohol measuring device fitted to his car but I’d like to know more about it.


    Answer

    • The Alcohol Interlock Program which operates in several states is a relatively new initiative to address drink driving. While it has many advantages it is not a ‘get out of jail free’ card.
    • The program does allow an offender to drive under strict conditions for a set period once a shorter than usual disqualification period has been served.
    • However during that set period the offender can only drive a car that has been fitted with a device that prevents the car from starting if the driver’s blood alcohol concentration reaches .02.
    • It is not suitable for everybody because it involves complex legal rights and obligations which your lawyer will no doubt explain to your son.
    • It is also quite expensive with all costs carried by the offender. These include installing the device and monthly calibrations.
    • From a community point of view this program aims to reduce the number of repeat offenders on the road. From an offender’s perspective it allows those who have a real need for a licence to be back on the road more quickly. Perhaps even more important it also offers the offender a more holistic approach to their problem. Before an offender has the device installed the law requires them to attend a medical consultation about their alcohol consumption.
    • The program is normally in place for between two and four years but the court has the power to extend that period.


  • Can prescription medication interfere with an interlock device?

    Question

    My solicitor wants me assessed for the Alcohol Interlock Program but I take a range of drugs to treat blood pressure, depression and diabetes. 


    Answer

    • The program has been running since 2003 and so far there have been no known problems. However some medicines and products such as mouthwash may contain alcohol (ethanol).
    • Users are advised to read labels and wait at least 10 minutes after using such products to avoid false readings.

  • How can I convince my daughter that drinking and driving don’t mix?

    Question

    My daughter is in her late teens and it disturbs me that she doesn’t seem to view drink driving as a serious offence. I know this because I have been at home when she has been dropped off by rowdy friends who she says have been drinking ‘’but they seemed fine’’. She plans to get her ‘L’ plates this month. How can it I get it through to her that drinking and driving don’t mix and the consequences can be disastrous?


    Answer

    • The teenage to mid-20s is often seen as the most traumatic period for parents of young drivers because this age group is consistently over-represented in car crashes throughout Australia. 
    • Your daughter may look upon you as a nagging parent but she can’t argue with the cold hard facts revealed in authoritative studies on car crashes and the effect even a small quantity of alcohol has on the brain.
    • It is estimated that alcohol is involved in about one third of serious car crashes. Even the lowest illegal level of concentration of .05 which can be reached with as little as two or three drinks in an hour doubles the risk of a crash. At .08 it is seven times the risk. These figures come from the Roads and Maritime Services official website. 
    • As a Learner or P-plate driver the level of alcohol must not exceed zero. The Court is very severe on Learner or P-plate drivers caught with above zero alcohol levels.

  • Should I defend a DUI charge or just cop it?

    Question

    I’m a 40-year-old male and I was recently charged with DUI after several motorists reported my car slightly swerving on the highway between Queensland and the NSW Central Coast. I had been driving for five hours after my daughter’s wedding the previous night and realised I could not stay awake so pulled into a service station for a sleep. I was awoken about three hours later by police who had been given my number plate. I explained the situation but the officer said he could smell alcohol on my breath which was probably due to what I’d consumed at the wedding the previous night. He said I would be charged with DUI as too much time had elapsed for a roadside test. I’ve spoken to a few people who say I should defend the charge. It is coming up in court in a fortnight. 


    Answer

    You should never ‘cop it’ if you feel you are not guilty of an offence. 

    • DUI is just as serious as a PCA and the penalties are just as stiff with not only a conviction and fine but also a minimum driving disqualification of six months.
    • This is one case where it would be essential for you to engage us to represent you.
  • Do I have a defence?

    Question

    I’ve been charged with low-range drink driving (.06) soon after I left the club. I had consumed three drinks in two hours. I’m a 39-year-old woman and only slight but I thought two standard drinks in an hour and one drink each hour after that was ok. I’m going to represent myself and was wondering if my adherence to this general rule is a defence. 


    Answer

    • There is no actual defence to drink driving. The amount of alcohol you consume and the reading returned on a subsequent breath analysis is different for every individual. Road safety messages long ago abandoned the two-drinks-the-first-hour-then-one-thereafter rule because it is just not true.
    • A host of different factors make up your actual reading. The court will not accept that as your defence however you can use these facts as mitigating factors for a court to consider when deciding an appropriate penalty.
  • Will my case be in the local papers?

    Question

    I am a mother of two and I have been charged with a high prescribed concentration of alcohol when I was caught driving home from a friend’s 40th birthday party. I live in a country town where the local newspaper reports on most drink driving charges. I’m not so worried about myself appearing in the paper but I’m concerned about the effect this will have on my children aged 10 and 15 one of whom suffers from anxiety and depression. Can my lawyer ask the court be closed to ensure my case is not publicised?


    Answer

    • The court has a very limited power to close the court or at least prohibit publication of defendants’ and victims’ names in certain categories of crime. This power is mainly confined to protecting sexual assault victims or offences that identify child victims.
    • A magistrate does not have the power to close court or prohibit the publication of names of offenders in drink driving matters.

  • Will my elderly grandfather go to jail?

    Question

    He is 68 and has been charged with mid-range PCA. He was stopped by police coming home from the club when he blew .09. He has been driving for 50 years with only one other offence on his record when he was caught for DUI when he was 21. I’ve never known him to drink and drive but he has become more dependent on alcohol to ease his pain and depression after my grandmother died three years ago. He plans to plead guilty but we are terrified that with the reading and his previous conviction he might to jail.


    Answer

    • It’s highly unlikely your grandfather is facing a jail sentence. In fact if he has been driving without being booked since his first and only driving offence nearly 50 years ago the court will treat the matter in a lenient manner. Courts view this sort of record very favourably but still they need to be convinced this was out of character and is unlikely to happen again.
    • Your grandfather would be best to engage our services to put the mitigating factors in his case as strongly as possible.