On 28 June 2021 the NSW government introduced a new offence of Drink Driving / PCA combined with drug driving / presence of illicit drug in oral fluid. Until this time these offences have been separate and it was rare to see both offences together. The punishment or penalties for this combined offence are serious, especially considering the periods of disqualification to a persons driver’s licence.
Drink & Drug Driving – First Offence & Second Offence
For matter where you are charged and/or convicted for the first time in five years, this charge will only apply to mid and high range Prescribed Concentration of Alcohol (PCA).
For a second or subsequent offence within the last five years, this offence will apply for any level of Prescribed Concentration of Alcohol (PCA) and positive oral fluid sample.
This offence can be quite complicated in the sense that, it is effectively combining two existing offences of Drink driving and drug driving / drive with illicit substance presence in oral fluid sample.
What Is A Prescribed Illicit Drug?
The Act lists the prescribed illicit drugs of:
- marijuana (also known as delta-9-tetrahydrocannabinol);
- speed (also known as methylamphetamine);
- ecstasy (also known as 3,4-methylenedioxymethylamphetamine);
What happens with Drink & Drug Driving?
When you are pulled over you may effectively be given two tests, one for illicit substances and another for a breath test. If you are positive for both tests, then the driver is place on suspicion of the combined offence. The driver then attends the Police station where you undergo breath analysis and the purposes of a secondary oral fluid test. If both tests are positive or over the prescribed alcohol limit you will be charged with the combined offence. This is despite the illicit substance test not being confirmed by a laboratory at the time of charging.
The theory is that that if the drug sample returns a negative final result the Police will withdraw the combined offence and proceed only with the Drink Driving or PCA charge at the time of the court matter.
Similarly, if your secondary oral fluid test at the station is negative they will only charge you with the drink driving offence applicable.
What penalty could I be facing for a combined offence (Drink Driving / PCA and Drug Driving / Illicit drug in Oral Fluid)
Regardless, of which offence category you fit into in respect to the combined offences, there is an immediate licence suspension for any combined offences. As this is a Police suspension the test you must then overcome when appealing your licence suspension is one of exceptional circumstances.
The penalties for this combined offence are as follows:
|Combined Offence – First Offence|
|Mid Range PCA + Illicit Substance||High Range PCA + illicit substance|
|Maximum Imprisonment||18 Months||24 Months|
|Minimum Disqualification||12 Months||2 years|
|Automatic Disqualification||2 years||4 years|
|Interlock Period (minimum)||12 months||2 years|
Combined Offence – Second Offence
|Low, Novice & Special Range + Illicit Substance||Mid Range PCA + Illicit Substance||High Range PCA + illicit substance|
|Maximum Imprisonment||18 Months||2 years||2 years|
|Minimum Disqualification||18 Months||2 years||3 years|
|Automatic Disqualification||2 years||4 years||6 years|
|Interlock Period (minimum)||12 months||2 years||4 years|
In circumstances of aggravation especially involving High Range PCA the guideline judgement would still apply, meaning it is unlikely that you will be able to avoid a conviction in most circumstances. The reason for this is due to the seriousness of the offence and a Guideline Judgement from the NSW Criminal Court of Appeal. This judgement held that section 10 (CRO without conviction) would be rarely utilised.
The guideline judgement also outlines cases or scenarios where the court would consider a custodial sentence such as where a collision occurs etc.
Defences to Drink and Drug Driving
There are a number of possible defences to drink and drug driving, it is important to remember to obtain competent legal advice early in your mater. Catron Simmons lawyers, will be able to assist you in determining whether there are any viable defences and what is best for your individual situation.
Some defences are:
– disputing the reading – that is the level of alcohol and/or drug Police allege was in your blood stream at the time of the offence.
– the test was not conducted lawfully
– that you were not the driver.
At Catron Simmons Lawyers, we can offer you qualified advice best suited for your situation to ensure the best outcome for your matter.