Drink driving offences

Having appeared in thousands of drink driving matters, Josh McKenzie and James McLoughlin have an extensive knowledge of the various offences, potential penalties, and a comprehensive understanding of the defences available. They can also tailor and deliver the most suitable submission on your behalf should you be pleading guilty to this offence.

If you are charged with a drink driving offence, and require experienced criminal legal representation, give Josh and James a call so that you can meet them at their Manly Office. Alternatively, they are more than happy to come to you. Josh and James will appear for you at any court in New South Wales.

What is a drink driving offence?

There are two types of drink driving offences in New South Wales which are driving with the prescribed concentration of alcohol (i.e. PCA), and driving under the influence of alcohol and/or drugs (i.e. DUI). Having appeared in thousands of drink driving matters, our criminal lawyers have an intricate knowledge of the law, the penalties, and the defences available.

Although drink driving charges are very common, and those who commit these offences are generally of good character, one needs to be aware that such an offence is viewed as particularly serious. As expected, the Courts have taken a dim view on those who commit such an offence. For experienced representation that is client-focused and results-driven, contact our principals Josh McKenzie and James McLoughlin for skilled legal representation.

If you are convicted for an offence of drink or drug driving, this can potentially result in lengthy periods of imprisonment, community service, fines, and the loss of your licence for months or perhaps years. 

If you have been charged with a PCA offence the charge papers and Field Court Attendance Notice (FCAN) should state the range you have been charged with. Alternatively, you should have been given a copy of the ‘Breath Analysis Reading’ (BAS certificate) which is a certificate with a small receipt attached to it. This receipt is generated from the machine that takes your reading at the police station. This certificate or receipt will tell you what your actual reading was. If there is uncertainty with the reading, or to arrange representation, contact our team for advice.

The chart below can assist in determining the various offences and the breath analysis reading for each:

Reading	Range	Who can be charged with this offence?
0.01 to 0.19	Novice	Holders of learner or provisional licences and also anyone who is unlicensed (including suspended or disqualified).
0.02 to 0.049	Special	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	Low	Any person driving a motor vehicle on a road or road related area.
0.08 to 0.149	Mid	Any person driving a motor vehicle on a road or road related area.
0.150 or greater	High	Any person driving a motor vehicle on a road or road related area.

What are the defences to drink driving?

i) Establishing that the test was done unlawfully

Time

Schedule 3 of the Road Transport Act (The Act) sets out the circumstances in which Police are lawfully able to administer a breath test, take blood or urine, or subject a driver to a sobriety assessment. Amongst other things, Schedule 3 of The Act also defines certain things such as who an analyst is, what an approved oral fluid testing device is, and also what a breath analysing instrument is.

Generally, for a charge of drink driving the Prosecution will rely on a breath analysis certificate to prove the reading. In terms of the admissibility of such a reading, the police should have completed the breath test or breath analysis within two hours of a person having driven. That means that should police by unable to prove that the test was conducted within two hours driving, then the results of the test may be inadmissible and the matter may be dismissed. Such situations can occur when police are delayed in attending an accident scene or forget to bring the equipment required for a preliminary breath test. As such, if they do not conduct a breath analysis on the driver until more than two hours has elapsed and then face difficulties proving their case.

Another example of when police are unable to prove ‘time’ of drinking and driving is when they locate someone on the side of the road in the driver’s seat but without the keys in the ignition. Police are often unable to prove their case without supporting evidence from witnesses or CCTV as it is very difficult to prove that person had actually driven the vehicle within the previous two hours. All of these facts need to be considered when deciding the merits of a prosecution case. Josh and James are very experienced when it comes to advising and appearing in drink drive matters.

​Location

Police are also unable to administer a breath test or sobriety assessment if a person is at their home. Plain and simple, ‘a person’s home is their castle.’ Police cannot breath test a person after they have pulled into their own private space. Police also cannot attend a person’s home after an accident and ask them to submit to a breath test. If a person lives in a unit complex there are specific cases which deal with whether or not the driveway or attached parking area are deemed to be part of the ‘premises’.

ii) Establishing ‘the driver’

A Police officer has the power to require a person to submit to a breath test if they ‘have reasonable cause to believe’ that you have been the driver of a vehicle or attempted to drive a vehicle. However, although Police only require a ‘reasonable belief’ to breath test a person, they bear the onus at court of proving ‘beyond a reasonable doubt’ that who was the driver. As you can imagine, this is a far higher test than a ‘reasonable belief.’ Prosecutions are regularly lost and matters dismissed in cases where the police are not able to prove that the person charged was in fact the driver at the time. As such, it’s important to contact an experienced criminal and traffic lawyer to have your story told. We recommend that you call or email Josh and James for advice if you are charged with drink driving.

iii) Disputing the reading obtained 

The Road Transport Act sets out presumptions in relation to the accuracy of instruments used to test a person’s blood alcohol content (BAC). However accurate they are, these devices are testing a BAC up to two hours after a person has actually driven.

What that means in respect of the offence is that depending on a number of factors, a person’s BAC may have risen from the time of driving to the time that of testing. As some people process alcohol at different rates from others, it may be possible to obtain an expert report from a pharmacologist showing that a reading at the time of driving would have been lower than what the Police blood alcohol reading is. 

By way of example, there is potentially an advantage in considering and using a pharmacologists evidence in a case. A person charged with low range PCA may be able to show that they would not have been over the limit at the time of driving should the pharmacologists evidence support the proposition. Similarly, a person charged with high range PCA may be able to show that they would actually have been within the mid range PCA limits at the time of driving. Should this be the case, then there is potential scope for negotiation with the prosecution as to having the charge changed to a less serious one. This would mean that on sentence, a client would incur a much shorter period of disqualification and potentially a lower fine as well. 

iv) Honest and reasonable mistake of fact

This defence is not precluded by legislation and would allow a defence to be run on the basis that the person lacked intent as to being affected by alcohol. By way of example, should a person believe that their drink was spiked, then that person could potentially raise that as a defence to them driving with the prescribed concentration of alcohol. That being said, this is often a very difficult defence to raise to the requisite standard, even in situations where a drink is spiked, because a person would generally accept that they were aware at the time of driving that they were personally experiencing difficulties. Of significance, a Court may also make that finding as well.

What are the penalties for drink driving?

Courts are particularly concerned with drink driving offences as they place road users and the community at risk. If you are charged with a drink driving offence, penalties can be harsh, so it is crucial to seek out an experienced criminal lawyer for representation. That’s where Josh and James come into the picture. Josh and James are passionate about their clients having their side of the story heard.  So whether it’s a plea of not guilty and a defended hearing, or a sentence matter on your behalf, Josh and James are here for you.

The penalties for drink driving are listed below:

Prescribed concentrations:	Penalty		Disqualification		Mandatory interlock
					Initial disqualification		+ man inter’
	Fine	Prison	Auto	Min	Min disq	Max disq
High Range PCA
First offence	$3300	18 mths	3 yrs	12 mths	6 mths	9 mths	24 mths
Second offence	$5500	2 yrs	5 yrs	2 yrs	9 mths	12 mths	48 mths
Mid Range PCA
First offence	$2200	9 mths	12 mths	6 mths	3 mths	6 mths	12 mths
Second offence	$3300	12 mths	3 yrs	12 mths	6 mths	9 mths	24 mths
Low Range PCA
First offence (if not Ticketed instead)	$2200	Nil	6 mths	3 mths
Second offence	$3300	Nil	12 mths	6 mths	1 mth	3 mths	12 mths
Special Range PCA
First offence (if not Ticketed instead)	$2200	Nil	6 mths	3 mths
Second offence	$3300	Nil	12 mths	6 mths	1 mth	3 mths	12 mths
Novice Range PCA
First offence (if not Ticketed instead)	$2200	Nil	6 mths	3 mths
Second offence	$3300	Nil	12 mths	6 mths	1 mth	3 mths	12 mths
Refuse breath, oral, fluid test, sobriety assessment.
First offence	$1100	Nil	Discretionary Power to Disqualify for any length
Second offence	$3300	18 mths
Refuse breath analysis/blood sample.
First offence	$3300	18 mths	3 yrs	6 mths	6 mths	9 mths	24 mths
Second offence	$5500	2 yrs	5 yrs	2 yrs	9 mths	12 mths	48 mths
Driving under the influence of alcohol or drug:
First offence	$3300	18 mths	3 yrs	12 mths	6 mths*	9 mths*	24 mths*
Second offence	$5500	2 yrs	5 yrs	2 yrs	9 mths*	12 mths*	48 mths*