Drink Driving Offences

Presence of Prescribed Content of Alcohol Section 110

The latest New South Wales legislation that deals with drink driving charges is the Road Transport Act 2013. There are a number of PCA offences under the Act, depending on your test reading, and also what type of licence you hold at the time of the offence.


Novice Range PCA

Novice range PCA are drink driving charges that are issued on a person when they deliver a Blood Alcohol Concentration of above 0.00 but below 0.020 (0.00 to 0.019), and are subject to a zero blood alcohol content requirement, such as P1 or P2 drivers.

The specific law reads as follows from the Road Transport Act Act 2013:           

“Section 110 (1) – Offence-novice range prescribed concentration of alcohol:           

A novice driver must not, while there is present in his or her breath or blood the novice range prescribed concentration of alcohol:           

(a)        drive the motor vehicle, or           

(b)        occupy the driving seat of the motor vehicle and attempt to put the motor vehicle in motion.”

 

Special Range PCA

Special range PCA is issued on a person when they deliver a BAC of 0.020 or higher but below 0.050 (0.020 to 0.049), who is subject to a zero alcohol limit or special alcohol limit, including P1 and P2 drivers. The special range limit will also apply to bus drivers and taxi drivers whilst they are in operation of their work vehicle.

The specific law reads as follows from the Road Transport Act 2013:           

“Section 110 (2) – Offence-special range prescribed concentration of alcohol:           

A person must not, while there is present in his or her breath or blood the special range prescribed concentration of alcohol:           

(a)        if the person is a special category driver in respect of a motor vehicle drive the motor vehicle, or           

(b)        if the person is a special category driver in respect of a motor vehicle occupy the driving seat of a motor vehicle and    attempt to put the motor vehicle in motion, or           

(c)        if the person is a special category supervisor in respect of a motor vehicle and the holder of a driver licence (other than a provisional licence or a learner licence) – occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.”


Low Range PCA

Low Range Drink Driving charges are where you drive a motor vehicle with a blood alcohol concentration between 0.050 and 0.079.

The specific law reads as follows from the Road Transport Act 2013:           

“Section 110 (3) – Offence-low range prescribed concentration of alcohol:           

A person must not, while there is present in his or her breath or blood the low range prescribed concentration of alcohol:           

(a)        drive a motor vehicle, or           

(b)        occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or           

(c)        if the person is the holder of a driver licence (other than a provisional licence or a learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.”


Mid Range PCA

Mid Range Drink Driving charges are where you drive a motor vehicle with a blood alcohol concentration between 0.080 and 0.149.

If the court convicts you of ‘mid range drink driving’ charges, it must disqualify you from driving. However, if you are ‘guilty’ and the court deals with you under ‘section 10’ (no conviction), you will not be disqualified.

The specific law reads as follows from the Road Transport Act 2013:           

“Section 110 (4) – Offence-middle range prescribed concentration of alcohol:           

A person must not, while there is present in his or her breath or blood the middle range prescribed concentration of alcohol:           

(a)        drive a motor vehicle, or           

(b)        occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or           

(c)        if the person is the holder of a driver licence (other than a provisional licence or a learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.”

High Range PCA

High Range PCA is where a person drives a motor vehicle with a BAC of at least 0.150.

The specific law reads as follows from the Road Transport Act 2013:           

“Section 110 (5) – Offence-high range prescribed concentration of alcohol:           

A person must not, while there is present in his or her breath or blood the high range prescribed concentration of alcohol:           

(a)        drive a motor vehicle, or           

(b)        occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or           

(c)        if the person is the holder of a driver licence (other than a provisional licence or a learner licence)-occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.”

In 2004, the NSW Court of Criminal Appeal handed-down a ‘guideline judgement’ on high range pca which essentially told the lower courts to treat the offence seriously, and impose consistent sentences.

Since that time, the penalties imposed for High Range PCA have increased significantly. If you have been charged with a High Range PCA you should seek legal advice and representation immediately.

See the High Range PCA Guideline here.

Driving Under the Influence (DUI) Section 112

Drink Driving Charges: DUI

Driving under the influence (DUI) is different to standard PCA drink driving charges, in that a DUI charge does not require police to prove that you were affected by a specific amount of alcohol – only that you were affected by some amount of alcohol or drugs.

This “affection” is generally based on police observations about your driving, actions or demeanour which may suggest that you were under the influence of drugs or alcohol, without submitting to a breath test. Other surrounding circumstances and factors are taken in to account such as the person’s breath smelling of intoxicating alcohol, glazed or red eyes, slurred speech, swaying or unsteady on feet, or being involved in a car accident.

The specific law reads as follows from the Road Transport Act 2013:

“Section 112 – Use or attempted use of a vehicle under the influence of alcohol or any other drug:           

(1)        A person must not, while under the influence of alcohol or any other drug:                       

(a)        drive a vehicle, or                       

(b)        occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or                       

(c)        being the holder of a driver license (other than a provisional license or a learner license), occupy the seat in or on a motor vehicle next to a holder of a learner license who is driving the motor vehicle.           

(2)        If a person is charged with an offence under subsection (1):                       

(a)        the information may allege the person was under the influence of more than one drug and is not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the information, and                       

(b)        the offence is proved if the court is satisfied beyond reasonable doubt that the defendant was under the influence of:                                   

(i)         a drug described in the information, or                                   

(ii)        a combination of drugs any one or more of which was or were described in the information.”

Refuse Breath Test, Refuse Breath Analysis & Wilfully Alter Blood Alcohol Sections 16 & 18

Refuse Breath Test - Section 16(1)(a)

The drink driving charges of refusing a breath test comes about whether the driver of a motor vehicle refuses or fails to provide a sample of breath to the police when directed to do so. Generally, this offence will occur when a driver refuses or fails a road side breath test which occurs prior to police conducting a breath analysis.

The specific law reads as follows:           

“Section 16 (1) A person must not, when required to do so by a police officer under this Part, refuse or fail: 

(a) to submit to a breath test under Division 2 in accordance with the officer’s directions”


Refuse Breath Analysis - Section 16(1)(b)

These drink driving charges are more serious that refusing a breath test. It is committed by a person who is the driver of a motor vehicle and refuses or fails to provide a sufficient breath sample by way of a breath analysis. Generally, you will be offered 3 attempts to provide a sufficient sample and failure or refusal will result in this charge being issued. You are required to follow police directions to provide such a sample and it cannot be used as a defence to say that you wish to first seek legal advice.

The specific law reads as follows:           

“Section 16 (1) A person must not, when required to do so by a police officer under this Part, refuse or fail: 

(b) to submit to a breath analysis under Division 2 in accordance with the officer’s directions”


Wilfully Alter Blood Concentration - Section 18

These drink driving charges are when a person purposely consumes a substance in order to alter the level of blood alcohol in their breath or blood between the time of the event of driving and the time in which they are tested. For example a person would be charged under this law if they were involved in a car crash and during the time they were waiting for the police to arrive they wilfully consumed more alcohol. It is a law which has been put in place to prevent people from saying that at the time of the car crash they were sober and decided to consume alcohol after the crash when they were driving the vehicle.