Drinking & driving offences

Drinking and Driving,  Drive Under the Influence. There are two types of drink driving offences with which you can be charged, both of which are established by the Road Transport (Safety and Traffic Management) Act 1999 (NSW). The first is for driving while under the influence of alcohol (s 12) and the second is for driving with the prescribed concentration of alcohol (s 9).

It is most often the case that the police will charge you with the second offence because they will usually have a precise blood alcohol reading. The police will charge you with driving under the influence of alcohol, however, if they do not have a reading. This would occur if you refused to be tested, there was a technical problem, or there was some other reason why a reading could not be obtained. You should note, however, that refusing a breath test and refusing a blood analysis are offences in themselves.

If you are charged under s 9 your offence will be categorised according to the prescribed concentration of alcohol (pCA). The more alcohol in your blood, the severer the penalty. The ranges and penalties are shown in the table below*:

1st Offence 2nd Offence within 5 years
Alcohol Level Max Fine Automatic Disqualification Min
Disqualification
Max gaol Max Fine Automatic Disqualification Min
Disqualification
Special Range (0.02 – 0.049) $1,100 6 months 3 months N/a $2,200 12 months 6 months
Low Range (0.05 – 0.079) $1,100 6 months 3 months N/a $2,200 12 months 6 months
Middle Range (0.08 – 0.149) $2,200 12 months 6 months 9 months $3,300 3yrs 12 months
High Range (0.15 +) $3,300 3 yrs 12 months 18 months $5,500 5 yrs 2 yrs

* current as of 2003

Whether or not you wish to plead guilty to the drink driving offence you are charged with, it is advisable that you get legal advice. In some circumstances you may be able to get a legal aid solicitor to deal with your matter, but in most instances you will need to retain a private solicitor.

A solicitor will be familiar with the procedures of the local court – where your matter will be heard – and will be best placed to present your case in the appropriate and indeed, most advantageous fashion. If you refer to a solicitor well in advance of your court date they will be able to ensure all evidence is provided to the court on the day, and further, that other action that will assist your case is taken prior to your appearance.

It is particularly important that you consult a solicitor if you have been charged with a major drink driving offence (for example, your prescribed concentration of alcohol is 0.15 or more) and you have already been charged with a major traffic offence, or if there are significant aggravating features. Aggravating features include the following:

  • There were passengers in the car (particularly if of a young age)
  • The drink driving lead to an accident
  • The drink driving led to an accident and somebody was injured

If either is the case, you may be running the risk of a custodial sentence and your solicitor will need to consider asking that a pre-sentence report be prepared. The report must be ordered by a magistrate, so you would first need to appear in court and your solicitor would request your matter be adjourned so that the report could be prepared. Once ordered, you would need to see a probation or parole officer. The magistrate would make an order that you see an officer closest to where you live.

A solicitor will also be able to enquire whether the court before which you are to appear makes available a traffic offender program. Not all local courts make provision for such a program. Again, you would need to have your matter adjourned so you could take part. The programs are run by organisations and individuals external to the court, but upon completion they can provide you with and attendance and achievement report, which your solicitor gives to the magistrate when you again appear before the court, this time to be sentenced.

If you are able to successfully complete a traffic offender program, this may assist in an application for what is called a ‘section 10 dismissal’. You do not have to have participated in the course to apply for one of these, but it can certainly help. A ‘section 10 dismissal’ refers to the power of the magistrate hearing your case to find you guilty but to discharge you without recording a conviction. You will only be successful in your application for such a dismissal if your offence is relatively minor. Further, in many cases the magistrate will make the dismissal conditional upon you entering into a good behaviour bond. Ask your solicitor whether application for a dismissal would be appropriate in your case.

Other steps you can take to improve your chances include providing your solicitor with full and detailed instructions, and providing references from members of the community. References should be arranged well in advance of your court appearance. They should be from friends, colleagues or family, and refer to your character, work ethic, community involvement and achievements. They should be addressed to ‘The presiding Magistrate’ and should note that the referee is aware of the specific offence with which you are charged.

Instructions you should provide to your solicitor include the following:

  • your age
  • your martial status
  • whether you have children
  • the ages of any children you might have
  • whether you are working and what you do
  • how long you have been working
  • how much you earn a week
  • whether you rent or own your home
  • how much you may in rent or on your mortgage a week
  • why you were driving after drinking
  • an assurance you will not drink in the future
  • whether you have a work or personal need for a license (a license may be essential to your work, or you or a family member may have a disability or other health problems)
  • any community courses you are undertaking, or any other community work or study

Finally, if you feel you have a drinking problem it is worth seeking treatment prior to your appearance at court. Alcoholics Anonymous (AA) or a doctor or other clinic can provide treatment and, with the exception of AA, a certificate evidencing the treatment you’ve undergone and any progress you’ve made can be provided. While AA will not provide you with documentation to this effect you should be able to get written references from other attendees confirming your attendance.

There are a few other things you should be aware of before you go to court. Firstly, make sure you do not drive to court. It sounds basic, but many a time a defendant has been stranded at court after being disqualified from driving. Secondly, make sure you do not drive during the period of your disqualification. You can be sentenced to 18 months gaol and fined up to $3,3000, as well as have your license disqualified for a minimum of an additional 12 months. Thirdly, if you will have difficulties paying any fine within 28 days, ensure you make a ‘time to pay’ arrangement with the court registry.

With over 50 years experience in this area of law, our criminal lawyers will be able to assist you in building your case and gaining the best possible result.