McKenzie McLoughlin First (1st) in NSW – Stay of Police Suspension Low Range Drink Driving & Drive with Illicit drug present in blood
First in N.S.W
This week McKenzie McLoughlin Law successfully had a Police Suspension for Low Range Drink Driving Stayed for one month by the Local Court. It’s likely this was the first decision in the N.S.W staying a police suspension for Low Range PCA.
Our client this week had significantly been impacted in a number of ways by recent changes to legislation, after receiving an immediate Police Suspension of their driver’s licence and Penalty Notice for Low Range PCA.
Changes to Road Transport Legislation
On 20 May 2019 changes to the Road Transport legislation came into effect, empowering NSW Police to issue a Penalty Notice (instead of a criminal charge) for the following offences:
- Drive with Novice, Special or Low Range PCA (first offence)
- Drive with Illicit drug present in blood (first offence)
Offences commonly known as DUI, Low Range Drink Driving, Drug Driving.
In addition to a Penalty Notice, NSW Police will also issue a driver with an on the spot Notice of Suspension of Driver Licence for a period of 3 months.
These changes will impact heavily on many drivers who have mistakenly committed offences that have traditionally been considered less serious, drivers won’t have to face court unless they choose to, but will find themselves suspended from driving for 3 months.
A driver who is detected driving whilst suspended will be criminally charged & face jail time and large fines https://mmlaw.co/practice/drive-whilst-suspended/
Previously first-time offenders detected driving either with a Low Range Prescribed Concentration of Alcohol or an Illicit drug present in their blood, were criminally charged and had to face the Local Court, but were not suspended and had a chance to obtain a non-conviction penalty at court, no disqualification and no time off the road.
Now, first-time offenders detected will be issued with a Penalty Notice & an on the spot 3-month suspension of their driver’s licence. Offenders avoid going to court and the risk of a criminal conviction but spend 3 months off the road from the time of detection.
Your Options under the new Penalty Notice Regime
- Apply to the Local Court to set aside the police suspension
- Court elect the Penalty Notice.
Neither option stays the suspension (you remain suspended) & will not be heard by a court for at least a month.
- Apply to the Local Court to both set aside & immediately stay the police suspension (you drive straight away).
The test to either set aside or stay a police suspension is “Exceptional Circumstances”. Establishing Exceptional Circumstances is a very difficult test, particularly without experienced legal advice.
What our case this week clearly demonstrates is that although the NSW Government’s clear intent is to ensure offenders spend a period of time immediately off the road, they have also preserved everyone’s right of appeal to a court. Although the test to set aside or stay a suspension is a difficult one, a properly presented case, can get you back on the road sooner. This is what McKenzie McLoughlin Law does for its clients.
Before exercising any of your court options obtain legal advice from one of our experienced lawyers, as you need to consider several things including; court electing a Penalty Notice may result in a 3 month or longer disqualification of your licence; possibly a higher fine; an admission of guilt; and possibly a criminal conviction.
With our legal advice, we can help you decide what to do if you find yourself facing a Police Suspension of your Driver Licence for 3 months. This legislation is new, don’t just speak to anyone, contact us for honest and experienced legal advice on this new regime.
An update on new driving laws from Northern Beaches Legal Practice – McKenzie McLoughlin Law
“In terms of the number of criminal law matters that our practice handles on the northern beaches, drink driving remains prevalent.
Quite often, a driver will be pulled over, breath tested, and will produce a positive reading.
What follows is the arrest and a subsequent breath analysis at Dee Why or Manly Police stations.
More often than not, the final reading that is returned is the low range, which is 0.05 to 0.079.
In recent times, courts have taken a particularly dim view of any drink or drug driving offence.
It is now quite rare for a Magistrate to exercise discretion and not record a conviction for a drink driving charge.
Usually, that discretion is limited and generally afforded to those with a great deal of driving experience, a minimal traffic record, a genuine need for a licence, and some level of rehabilitation.
As of May 20, low-range, novice range and special range drink driving charges (and charges involving driving with illicit drugs present) will be replaced with a $561 infringement notice and a 3-month licence suspension.
It is important to know that payment of a penalty notice is not a criminal conviction or an admission of guilt.
Any person charged with such an offence can still elect to have the matter determined by the court, however that person will still be suspended from driving until the court date.
While a court may decide to deal with the matter without recording a conviction, there is of course the risk of having a criminal conviction recorded and then facing a period of disqualification.
It would appear that the sentiment of Parliament is to increase the number of people immediately suspended from driving for such an offence, without the person receiving a criminal conviction from a court. In turn, this will leave the court more time to hear and determine other matters.”
The above article was published in the Manly Daily on 18 May 2019, their paper and articles can be accessed here:
Getting caught for drink or drug driving is not likely to result in favorable outcomes. However, at McLoughlin McKenzie Law, we work on these cases every day and have done so for years. Our wealth of experience with these types of charges offers our clients advantages they might not otherwise have if they take on the legal system alone.
We serve the communities of Manly, the Northern Beaches, and Sydney to help drivers return to the road as quickly as possible. Our years of working with law enforcement in these communities allow us to deliver the best services, networks, and resources to our clients.
If you are wondering if you need a drink driving lawyer, you have come to the right place. We are going to outline many of the specifics involved in determining drink driving charges and what penalties they carry. We hope that this information will guide you in making informed decisions about your DUI incident and whether or not a lawyer should get involved.
How Drink Driving Charges are Determined
The blood alcohol content of an individual is typically assessed on site and verified by a breathalyzer breath or blood test. If your test reads anything above 0.05%, you will likely be arrested for a drink driving charge. The range of your blood alcohol content, referred to as the PCA level, determines the charges you will face after a drink driving incident. Below you will find the “range” for PCA levels and the common penalties associated with them.
- Novice Range PCA – 0.00-0.019
The severity of the Novice Range offence depends on whether or not the driver has previously committed a drink driving violation. This charge can impact any driver including those who are not licenced. A Novice Range offense will also appear on your criminal record which is available to anyone, such as, employers who do criminal background checks.
To avoid criminal conviction, hire a drink-driving lawyer to obtain a potential section 10 non-conviction order. By doing this, the courts may see this as a proactive approach to your charges, and you are taking the situation seriously. As a result, you may be able to keep your licence.
Fines – First-time offenders are fined up to $1,100 with a potential 3-6 month period of disqualification of driver’s licence. Novice offenders who repeat this offence within 5-years will pay up to $2,200 and lose their licence from 1-to-3 months with a 12-month interlock period.
- Special Range PCA – 0.02-0.049
The Special Range PCA impacts all drivers including those who drive for employment, like taxi and bus drivers. Penalties will depend on the severity of the charges which will end up on a criminal record no matter how your penalties pan out. A Special Range offence is eligible for a section 10 order, but you will need a lawyer to navigate that with you.
Fines – A $1,100 fine is typically imposed on the Special Range drink driving offender with a 3-6 month loss of licence privileges. There is an automatic 12-month interlock period applied as well.
- Low Range PCA – 0.05-0.079
As with the Novice and Special Range charges, the Low range is similar in that it applies to all drivers and penalties rely on the severity of the incident. The charge appears on your criminal record and is eligible for a section 10 dismissal.
Fines – First-time offenders of the Low Range offence are likely to pay a $1,100 fine and lose driving privileges/licence for 3-6 months. Repeat offenders within the last five years will see a fine of up to $2,200 and a loss of licence for 1-3 months. The automatic interlock system is in place for 12-months.
- Mid Range PCA – 0.08-0.149
Mid Range offences are handled a little differently in that their penalties carry more severe consequences. Any driver with this PCA level can be charged with a Mid Range offence which will also leave you with a criminal record. A section 10 order might ease some of the charges, but you will need a lawyer to support you in how to accomplish this.
Fines – A first Mid Range offence may land you in prison for up to 9-months depending on the severity of your charges. A fine of $2,200 is likely, as is the loss of your licence for 6-9 months. Repeat offenders can see a $3,300 fine and a loss of their licence anywhere from 6-9 months. A 2-year interlock period is automatic.
- High Range PCA – 0.150 +
A High Range offence carries the highest penalties for drunk driver charges. This charge will be found on a criminal record and is “not” eligible for a section 10 leniency. Anyone driving with a 0.150+ PCA level is subject to this type of charge and their penalties.
Fines – An up to $3,300 fine applies to first-time offenders with a potential imprisonment period of up to 18 months depending on the severity of the charge. You are likely to lose your licence for 6-9 months with a two year interlock period. Repeat offenders will pay up to $5,500 and will lose their driving privileges for 9-12 months with a 4-year interlock period imposed.
The Extenuating Repercussions and Penalties of Drink Driving
Fines and criminal records may only be the start of the penalties that result from a drink driving offence. Most drink driving charges remain on a criminal record for 10-years which can impact many areas of your life. You could potentially lose your job, have to report your charge to a regulatory employment body, be subject to medical exams before you’re cleared to drive again, hurt your insurance premiums, and leave your travel life in question with visa restrictions to places like the United States.
Working with an experienced drunk driving lawyer may help avoid some of the life-changing ramifications that you have already experienced through the legal system. A lawyer may be able to reduce some of your penalties which may reflect better on your legal records and have less impact in other areas of your life.
Pleading Guilty to Drink Driving
Most Australians will choose to plead guilty to a drink driving offence, as the court is likely to hand you a better overall outcome for taking responsibility. Depending on the circumstances of your case, you may or may not need legal support to plead guilty. If you believe that your charges are eligible for a section 10 dismissal or leniency, we highly recommend working with us to help you through that legal process.
Pleading Not Guilty to Drink Driving
Not all DUI offences are equal, in fact, some turn out as inaccurate due to mistakes or wrongful oversight of the laws. If you believe your drink driving charge is a result of this sort of negligence, we suggest you contact a lawyer today so you can learn how to fight a drink driving charge. Below are some reasonable ways that people have fought DUI offences in the past.
Sometimes evidence doesn’t add up, and in those cases, you can absolutely fight a drink-driving charge. These cases are difficult to prove but an experienced lawyer will guide you and how best to approach your specific situation. For example, if you had a few sips of wine earlier in the evening, and hours later your PCA level read far too high to match what you know you had to drink, there may be ways to prove this to a court. The same can be said if you consumed food you were unaware had alcohol in it. Enlist the help of an experienced lawyer to determine if you have a case worth fighting for.
Technology is not perfect, and law enforcement makes mistakes. Neither one of these scenarios means that there is malice involved in your drink driving case, but it is worth investigating if you are staring down the path of legal ramifications that will significantly impact your life. If you believe an equipment malfunction occurred, when law enforcement used it to verify your blood alcohol content level, you may have a defence for your DUI case. This scenario will not be easy to prove, but with some investigating and evidence to support your story, it might make all the difference in the world to your outcome.
A Two Hour Time Lapse
Police are not given authority to administer breath tests on anyone they suspect has been drinking, if two or more hours have passed since the driver operated a motor vehicle. Sometimes this happens at the scene of an accident when there are many moving parts. Authorities are required to give breath or blood tests within the appropriate two-hour window if they suspect drinking and driving.
You Make it Home
Legally, police cannot try to establish your blood alcohol content if you have made it home to your residence. For example, if you made it inside your home before police were able to pull you over and administer a test, they are not authorized to arrest you for a DUI. This is a particular situation in the “Home Safe Rule,” and if you plan to use it as a defense, we recommend getting legal advice as soon as possible.
Police Are Not in Compliance
When it comes to the law, everything has a procedure, this is also the case in a drink driving incident where police have specific procedures they must follow. If you can prove that police did not comply with standard operating procedures, you may have a defense for your drink driving charge. To use this specific defense, you would have to know what officers are required to do in a drink driving incident, and show evidence to prove how they did not follow these standards.
Study Shows Australians Don’t Know the Drink Driving Laws
Budget Direct, a car insurance company, recently conducted a survey of men and women and their knowledge of drink driving laws in Australia. The results may surprise you because they certainly surprised us. Australia has some of the world’s most strict drink driving laws only behind countries like Pakistan (automatic imprisonment) and El Salvador (rumored to have a death penalty.)
Here are some of the findings of this study that may help you understand Australia’s drink and drug driving laws better.
- 26% of Australians polled didn’t know the PCA legal drinking limit of 0.05%
- 20% said they had operated a vehicle under the influence of alcohol. 24% of that number were men, while 16% of this statistic were women.
- 30% of roadway deaths involve alcohol in Australia. This compares to 9% in Germany, 16% in the UK, and 31% in the United States.
- Australians didn’t know what was meant by the “standard drink consumed” rates. This indicates how much alcohol you should consume within one hour in order to be able to drive. In general, this breaks down to one standard bottle of beer, one small glass of red wine, 30ml of a standard spirit.
*2000 Australians were polled for this study.
Drink driving is a severe offence in Australia as it has caused hundreds of deaths that were preventable. Of the 1,293 traffic deaths in the country, 19% were caused by a drink driving offence. This statistic is why the penalties for those caught between alcohol and driving are so severe.
No matter what drink or drug driving situation you have found yourself in, be that the cause of one or the victim, we would be happy to listen to the details of your case. Please contact McLaughlin McKenzie Law today to set up an appointment. We recommend knowing your rights and options before making any legal decisions with drink driving charges.
The stress of a drink driving charge can leave many people feeling lost and confused about their future behind the wheel. At McKenzie McLaughlin Law, our clients trust us with achieving the best results possible for their drink driving charges. We take this trust seriously as we understand how significant these charges can impact our clients’ freedom and livelihood. This is why we believe we are the best drink driving lawyers in Manly.
Drink driving is an offence against the Road Transport Act under section 112, determined by your Blood Alcohol Concentration (“BAC”). This is also referred to as the Prescribed Concentration of Alcohol level (“PCA”). The higher your alcohol reading, the more severe the penalties are and the more legal complications you are likely to endure.
Authorities determine your PCA level when they pull you over and conduct a breath test. This can be a completely random stop of you and your vehicle. After you commit to a breath analysis, or a blood test, here is what the results reveal about your PCA range.
- Novice Range PCA (learner or provisional licence) = 0.001 to 00.19
- Special Range PCA (learner or provisional licence) = 0.02 to 0.49
- Low Range – PCA = 0.05 to 0.079
- Mid Range – PCA = 0.08 to 0.149
- High Range – PCA = 0.150 +
Drink Driving Penalties
Every drink driving charge is different, which is why an evaluation by an experienced criminal lawyer is essential. The penalties that follow conviction will vary but will always result in the disqualification of your driver license. Being convicted of the offence also results in fines and a criminal record. Anyone charged with previous drink driving incidents may face imprisonment penalties depending on the details of the charges. Persons charged with high range drink driving for a first offence must understand that a custodial sentence is possible.
Here are the baseline implications for drink driving offences for first-time offenders.
- Novice Level $1,100 fine 3-6 month loss of licence (disqualification)
- Special Level $1,100 fine 3-6 month loss of licence (disqualification)
- Low Level $1,100 fine 3-6 month loss of licence (disqualification)
- Mid Range PCA $2,200 fine 6-12 month loss of licence (disqualification) 9 month max imprisonment and interlock licence
- High Range PCA $3,300 fine 12m.- 3 yrs loss of licence (disqualification) 18 month max Imprisonment and interlock licence
Factors That Impact Your Penalties
Drink driving lawyers in New South Wales can potentially change the outcome of your charges by using many factors. This means a lawyer can fight what is called a section 10 dismissal or a conditional release order ‘without conviction,’ which would prevent you from losing your license with no penalties. These are not “easy” by any stretch in the legal system, but they are possible and rely on the following details:
- Your Age and Character Details – These factors can help a court reflect on your typically responsible character and good citizen track record.
- Criminal Record – A clean record (no criminal charges) will show the court that your drink driving charge is not typical behavior and that you are unlikely to engage in drink driving activity in the future.
- Minor Drink Driving Charge – If the charge is trivial in nature, this may help you receive a section 10 dismissal.
Police must prove you are guilty in a Local Court, beyond a reasonable doubt, by proving you were in control of the vehicle and that your PCA range was over the legal limit. If you believe authorities will be able to prove this, your best course of action is to plead guilty and face the penalties. Criminal lawyers at McKenzie McLoughlin Law know how to get you the best result.
Not Guilty Plea
When you enter a plea of not guilty, there will likely be a hearing where witnesses are called to give evidence. The police need to prove the charges beyond a reasonable doubt. A criminal law lawyer is necessary to fight a drink driving charge. If you do this alone, you may not be competent in asking the right questions, calling the correct evidence, and making the proper submissions.
McKenzie McLoughlin Law Firm is ready to hear your case and advise you in the best outcome for your circumstances. Please contact us today if you are facing drink driving charges, even if you plan to plead guilty, so we can support you through the entire process.
Anyone faced with a legal matter can certainly attest at how uncertain life feels in that moment. Significant stress arises with legal matters which make it hard to decipher how to navigate the ‘next step.’ At McKenzie McLoughlin Law, we know how these moments can affect someone facing prosecution, and we are always ready to support our clients during those challenging times. Should you choose McKenzie McLoughlin Law, you are making an intelligent decision in respect of representations. Our years of experience will assist you in reducing your stress and worry, as well as arriving at the best possible outcome on completion of your case.
We offer various types of legal advice to New South Wales residents every day. We are regularly congratulated by our clients as being professional, experienced and enthusiastic criminal lawyers in the area. Our results speak for themselves. We handle various areas of practice which you can learn more about below.
At McKenzie McLoughlin Law, we understand how important a licence is to any person. We represent many clients from the most minor traffic matters through to very serious prosecutions including driving in a manner dangerous, police pursuits and dangerous driving occasioning death. Our most common type of matter that we appear in the Local Court is driving with the prescribed concentration of alcohol (PCA), or driving with drugs present.
In respect of a criminal charge for drink driving, this will undoubtedly disrupt, what feels like, your whole world. Our criminal defence team is experienced in these types of cases regardless if you plan to plead guilty or not. We have spent countless hours working on drink driving charges to get the best outcomes for our clients. Although at times we may not always be able to wipe the incident from your record, we can certainly help you minimise the penalties depending on your specific situation.
Here is a quick look at other traffic cases that we handle at our practice:
- Driving under the influence
- Driving with illicit drugs present
- Dangerous driving or in a manner dangerous
- Driving whilst cancelled, disqualified, suspended or unlicenced
- License appeals,
- Negligent driving or police pursuits
- Speeding offences or mobile phone offences
Criminal Law matters
Our legal team has an extensive history working in police prosecution and investigation. When it comes to criminal law cases, we are adept in court processes and work quickly to ensure more favorable outcomes. Our experience as former prosecutors and criminal investigators is your greatest advantage.
Below you will find some of our areas of specialisation in criminal law practice. If you have any questions about something not listed here, please give us a call, and we would be happy to advise you.
Assault offences, murder and manslaughter, assault and resisting police, domestic violence and assaults, indecent assaults, sexual assaults.
Robbery, firearms offences, stealing offences, weapons offences, property damage, drug offences, breaking and entering offences, Centrelink fraud, goods in custody and receiving offences, behaviour offences of conduct or language, and fraud.
Affray, riot and violent disorder, escape custody, kidnapping or take & detain, child pornography, terrorism offences, arson, and licensing offences.
Apprehend Domestic Violence or Personal Violence Orders (AVO’s)
In a very basic sense, an AVO can be applied for by the Police or by a person. Generally, this is when a person has threatened, assaulted, or stalked another person. There are two types of AVO orders; domestic and private. The domestic AVO refers to a domestic relationship, like a spouse or partner. A private AVO is for relationships outside of the personal realm, like a neighbour or co-worker.
It is our advice that if an AVO is served on you, then seeking out a solicitor who specialises in AVO’s is very important. Although it’s important to know that if you have an AVO order made against you, it is not a criminal charge. However, if you breach an order of the AVO it is likely you will be arrested by the Police and charged with a criminal offence. On the other side of the spectrum, if you apply for a domestic or personal AVO against a person, we can give you legal advice and represent you at Court. It is wise to engage a lawyer with a great deal of experience in this area of law as your safety and welfare is paramount.
If you have questions about how these orders work, you can learn more about how we handle AVO cases and the resources you may need going forward.
Our Manly criminal defence lawyers, help the people on the Northern Beaches, and also the surrounding regions of Sydney who need help with their legal matters. If you have been charged with any of the above listed crimes, or even with breaching an AVO, we recommend reaching out to our team today so we can get more information about your charges and advise you on your best legal options.
After a drink driving offence, one of the first tasks you are likely to do is seek legal advice. Even if you plan to plead guilty, it’s always good to consult with a lawyer about your unique situation to see if your penalties are eligible for a reduction. Drink driving lawyers in Sydney are trained to handle these cases, and here at McKenzie & McLoughlin Law, we have over 20-years of combined experienced to support your case.
Let’s Talk Costs
The next consideration, many times, is how much a drink driving lawyer costs. There is no “boilerplate” answer for this, as legal fees vary depending on law firm factors. Some lawyers have higher price-points per hour if they believe they are a high calibre legal team. Higher legal fees do not always equate to better legal representation.
Other firms work off contingencies depending on the case details, while some work on “fixed fee” basis. Fixed fees are often an advantageous structure and are usually attached to certain types of case. For example, when you plan to plead guilty to a charge.
In general, however, legal fees in Sydney typically run between $200-$400 per hour. Regardless of how the fee structure breaks down, you should ask for an itemised bill so your fee schedule is clear. A lawyer should always be clear about their fee structures with you for any legal matter, including drink driving charges. Don’t be afraid to ask your legal representation for this cost break down, so you know what you’re paying for, you are entitled to this unless it’s a fixed fee agreement.
Understanding “The Why” Behind Legal Costs
Legal representation costs can add up quickly, and it can be frustrating if you don’t understand why. The law is a complex system with many requirements and processes. While we are partial to a degree, even if we weren’t lawyers, we would advise you that there is no substitute for quality legal advice when faced with a criminal matter.
Let’s take a look at the legal process in drink driving cases so you better understand why the fees are structured the way they are, and why legal representation is often crucial to your case.
Drink Driving Legal Process
After your drink driving incident, you will get a notification as to when you need to appear in court. Magistrates in the Local Court handles most of these cases. Your next best step would be to hire a drink driving lawyer so you can get a clear picture of what to expect from your charges.
After you speak to the lawyer about the driving offence you can determine as to how you are going to plead; not guilty or guilty. Your lawyer will then prepare your matter and the appropriate paperwork depending on your plea instructions.
When you plead ‘guilty,’ the system is relatively straight forward and you might not need to appear in court on every court date depending on the circumstances of your case. When you plead ‘not guilty,’ a date will be set to hear your case before a Magistrate in the Local Court, until then you may have your licence suspended.
How to Prepare for Court – Hearing
If your plea is not guilty and as you await your hearing date, you and your lawyer will begin investigations into your case and collect evidence to support your position. Your lawyer will direct you in what they need so they can prepare for court. Some of the tasks your attorney may provide are:
- Collect witness testimony and statements, including from any Expert Witnesses
- Investigate the criminal statements by authorities
- Review recorded materials like interviews and forensic information
- Analyse imagery, video, or surveillance materials
- Decipher the criminal conduct and charges
- Review medical records (if applicable) of all parties involved
- Draft legal paperwork on your behalf
- Pay your court filing fees
- Issue subpoenas, including on The Commissioner of Police
Once your court date arrives, all of the efforts put into your case by your criminal lawyer will be on display in your court proceedings. Depending on the outcome of your case, you and your lawyer will have either won or need to do more work to wrap up your case properly.
When are Legal Fees Paid?
Now that you better understand the legal process, you might be wondering when you need to pay your legal fees to your criminal law firm. This depends on what the fee structure is with your particular legal team, but many firms require a lump sum at the start of your case. This amount should be paid into the lawyer’s Trusts Account, not their own Business AccontAccount. This “sum” is referred to as a “retainer” and allows a layer to start work on your case immediately. For fixed rate structures, fees may be required to be paid upfront before you go to court.
How to Prepare for Court – Sentence
Just like your legal team, you too will have responsibilities to adhere to in your drink driving criminal matter. When you take a proactive approach to your case, you can significantly impact the outcome of your charges and assist your lawyer in the process — some items you will want to think about or gather after speaking to your lawyer are:
- Acquire documentation of your driving record
- Provide proof that you need transportation in order to provide for yourself and family
- Establish your family structure and how it impacts them if you do not have transportation
- Provide documentation of your work compensation
- Collect character testimony about you and how you are typically a responsible citizen
- Attend a Rehabilitation and or Driver Education Course
- Sometimes something about you may be very relevant to the outcome, that only your lawyer will think of after you meet
Other Common Questions About Drink Driving Charges
As you await your appointment with your drink driving lawyer, here are some common questions we receive about these offences and their outcomes.
What is the legal drinking limit?
For the holder of an unrestricted driver’s licence, the Blood Alcohol Concentration (BAC) limit is 0.05 grams of alcohol in 210 litres of breath. If your BAC concentration is 0.05 or higher, you are breaking the drinking and driving laws. This limit is first indicated by a breathalyzer test done at the time you are pulled over by authorities and then confirmed by a Breath Analysis Machine at a Police Station, following your arrest. The following table shows a complete list of BAC limits.
|WHO CAN BE CHARGED WITH THIS OFFENCE?
|0.01 to 0.19
|Holders of learner or provisional licences and also anyone who is unlicensed (including suspended or disqualified).
|0.02 to 0.049
|Holders of learner or provisional licences and also anyone who is unlicensed (including suspended or disqualified) plus drivers of hire cars or drivers of heavy / dangerous loads.
|0.05 to 0.079
|Any person driving a motor vehicle on a road or road related area.
|0.08 to 0.149
|Any person driving a motor vehicle on a road or road related area.
|0.150 or greater
|Any person driving a motor vehicle on a road or road related area.
What if I am drunk “in” my car but not “driving?”
Police need to prove you are driving your car, which means you are in control of the steering, movement or propulsion of the vehicle. It’s important you seek advice from an experience lawyer, as you are not committing an offence just because you decide to sleep off your cocktail hour in the back seat of your car or simply because the keys to the vehicle are in the ignition.
How is my license handled after a drink driving charge?
Generally, your license is suspended after your drink driving incident, and you will need someone to help you with your car in that period. If you drive any vehicle while you are suspended, you will be breaking the law. If you are caught doing so by police, you will be charged with Driving whilst suspended and this will not help your drink driving charge, the sentence will likely be more serious.
What legal aid is available?
More often than not, legal aid isn’t available to those with traffic violations. The caveat to this is if you are facing potential imprisonment due to specific circumstances in your charges. Only a lawyer can help you determine this.
We understand that drink driving charges can leave you with more questions than answers, but we hope this gives you a good start in understanding your legal rights. If you are ready to hire an experienced legal team that helps people with these cases every day, please contact the offices of McKenzie McLoughlin Law to set up your appointment. We are ready to hear the details of your case and get you the best possible outcome.
Article in The Manly Daily – 28 November 2018
‘Tis the season to not be silly: or get cuffed’
IT’s the most wonderful time of the year, so to ensure your Christmas holidays are spent enjoying the festivities – and not police custody – please consider my helpful tips for the silly season.
When the party is rocking and the Christmas cheer is at epic proportions, it can be a difficult decision to call it a night. However, if you are perceived to be misbehaving, the police can take away all the stress involved and make the decision for you.
If you are too drunk in a public place, are disorderly or likely to cause injury or damage property, a police officer may issue you with a direction to leave the place and not return for a specified period of time of up to six hours.
You can be refused entry or turned out of a licenced premises if you are intoxicated, violent, quarrelsome or disorderly. If you don’t comply, try to re-enter, or remain within 50m of the premises you may be committing an offence.
Remember, reasonable force can be used to make you comply, and if you resist security or police, it’s likely you are committing a further criminal offence. The financial penalty alone that goes with it could be enough to ruin Christmas.
We recommend leaving the licensed premises if asked and finding another venue that’s far more festive. Alternatively, you could always move the party to home if you are finding that you are continually being refused entry.
Did you know that without your consent police can only search you if you are under arrest, or if they hold a “reasonable suspicion” that you have something illegal on you (e.g. drugs). This suspicion must have some factual basis to support it.
Police dogs are often used to further a suspicion. If someone is carrying drugs the dog will likely sit down when it detects a substance nearby. However, and Police would agree, it would be unwise for them to conduct a search on a person merely because the sniffer dog sits down.
So the next time a police dog sits down next to you don’t stress, unless you have a reason to. We also recommend that you don’t touch the dog.
Finally, we wouldn’t want anyone waking up and singing “All I want for Christmas is my two front teeth,” but if it is the case you somehow find yourself on Santa’s naughty list, contact us.
– Joshua McKenzie,
Director / Solicitor with McKenzie McLoughlin Lawyers
It would appear that our local police are insistent on being filmed! First it was ‘Beach Cops’ the popular T.V Series, but from now, local police will be able to contemporaneously record their interactions with the public through the use of body worn camera’s. This can be done in a public place or in private.
The use of body worn cameras by police is authorised by section 50A of the Surveillance Devices Act 2007 (NSW). The section states that police officers can use the devices:
- If they are acting in the execution of their duty; and
- If the use of the camera is overt e.g. if they inform the person who is to be recorded, and
- In the event they are recording a private conversation, when they are in uniform or have provided evidence to other people in the conversation that they are a police officer.
In addition, and despite the requirement of being “overt”, the section also states that recordings which are “inadvertent or unexpected,” or ‘incidental’ to the use of body worn video by the police officer will still be allowed under the law.,
It is important to know that police have publicly stated that the cameras will be ‘clearly visible’ and that the officers will advise the people that they are talking to that their conversation is being recorded. Of interest, this will apparently take place ‘where practicable.’
So why don’t the police just record everything?
Interestingly, the decision to use the body worn camera is discretionary. This means that police decide whether (and when) to turn the recorder on. A decision by the officer not to record an interaction might even be in a situation where a member of the public insists or requests that a particular encounter be filmed.
I am told that should the officer decide to film something, then there will be a minute of back capture footage from the time the officer starts recording. Nevertheless, if an officer chooses or forgets to film an encounter, then evidence of that interaction will forever be lost.
What happens to the footage?
As the footage is classified as ‘protected information,’ it essentially means that the footage is downloaded and stored securely without being copied, used or disclosed for non-official purposes (e.g. evidence in court, investigations, training or as otherwise allowed by the law).
So what are the main concerns?
A main concern is that it is the officer who decides when and where to film. In my view, this is fraught with danger as police could decide not to film an encounter simply because it does not benefit them. One would hope that Police would not deliberately provoke a member of the public and then turn the camera on to film the end of their interaction with them.
In my lengthy history of observing police, they sometimes (depending on their level of experience) make an early determination as to how they are going to deal with a situation and often get ‘tunnel vision.’ This means that they lose focus on other things going on around them, including the need to record an encounter should that be available to them.
Of course, another preliminary concern is that the police officer will not download any footage as required.
So what do senior police think about all of this?
Recently in a media release, Northern Beaches Superintendent Dave Darcy commented that the crystal-clear video was more likely to enhance pleas of guilty to offences.
The above being said, Police have strict rules to abide by when exercising their powers. Those powers are found in The Law Enforcement (Powers and Responsibilities) Act. If Police don’t comply with their own rules, then their actions may have adverse outcomes for themselves, particularly if it has been filmed or recorded and able to be viewed.
Time will tell, but my preliminary view is that it’s optimistic for the local Police to think that footage collected from body worn camera’s will only be a good thing for them. It is quite remarkable how often police get their powers wrong.
What if I am charged with an offence against the Police?
If you are charged with an offence, or have questions about body worn camera’s, get in touch with your criminal lawyers at McKenzie McLoughlin Law. As former prosecutors, let our detailed knowledge of how the police operate be your greatest advantage.
By Josh McKenzie, Director at McKenzie McLoughlin Criminal Lawyers
In recent times, tragically there have been a number of deaths caused by the consumption of illegal drugs at music and dance festivals.
In breaking news today, it was publicised that the N.S.W Government is now planning on creating new laws to hold suppliers responsible for any deaths that follow the supply of illegal drugs.
On review of what has been published today, it would appear by what has been said to the press that it is expected that drug dealers who are found to be responsible for supplying drugs that lead to the death of a person, could face up to 25 years in prison.
Of importance, The Drug Misuse and Trafficking Act defines ‘supply’ as:
“sell and distribute, and also includes agreeing to supply or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering, or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.”
According to the State Premier Gladys Berejiklian, the government will strengthen laws to target drug suppliers by introducing a new offence that would hold them responsible for any deaths they cause as well as trialling on-the-spot fines for drug possession.
“The Attorney-General and the police force will be working together … we envisage it will be anywhere between grievous bodily harm, which is 10 years [maximum in prison], and manslaughter, which is 25 years [maximum in prison], so somewhere in that range,” Ms Berejiklian said.
In respect of these proposed new laws and the already existing ones regarding drug supply, it is imperative that if you are charged with a drug offence you seek out experienced criminal lawyers for representation. At McKenzie McLoughlin Law, James and I are criminal lawyers who are former prosecutors for the Police and the DPP. I am also a former criminal investigator with the detectives. To have experienced legal representation that knows how the police go about their business in investigating and prosecuting matters is a tremendous advantage to any client. Call us for a free consultation.