Traffic and drink driving in NSW
Drink driving and PCA charges in NSW
A drink driving charge puts your licence, and often your job, at risk from the day you are stopped. We tell you straight away what you are facing, whether the charge can be defended, and what it takes to keep your disqualification as short as the law allows.
If police suspended your licence at the roadside, you have 28 days
An appeal against an immediate police suspension must be filed in the Local Court within 28 days of the notice. Miss that date and the court has no power to hear it. Call us before you do anything else, on 0407 171 626 or 0407 534 594.
Catron Simmons Lawyers are traffic lawyers acting for drivers charged with drink driving and PCA offences in Local Courts across New South Wales, from Sydney and the Hills District to the regions.
Whether you have been given a penalty notice for a first low range reading or you are facing a second high range charge with a mandatory interlock order, the page below sets out what each offence means, what the penalties actually are, and where a properly prepared case changes the outcome.
Know your charge
The five PCA ranges in NSW
PCA stands for prescribed concentration of alcohol. The range you are charged with depends on your blood alcohol concentration at the time of driving and on the licence you hold. The offences sit in section 110 of the Road Transport Act 2013 (NSW).
Novice range
Any reading above zero, up to 0.019, for a learner or provisional driver. These licences carry a zero alcohol limit.
Special range
Applies to special category drivers: learner and provisional drivers, and drivers of taxis, buses, heavy vehicles and vehicles carrying dangerous goods.
Low range
The most common charge. A first offence can often be finalised by penalty notice rather than in court, though that is not always the better option.
Mid range
A mandatory interlock offence carrying a possible prison sentence and an immediate police suspension.
High range
The most serious PCA offence. A guideline judgment of the Court of Criminal Appeal applies and a non conviction outcome is rare.
DUI and refusal
Driving under the influence and refusing a breath analysis are charged separately and carry penalties equivalent to high range PCA.
What you are facing
Drink driving penalties in NSW
The tables below set out the maximum court imposed penalties and the disqualification periods that apply where no interlock order is made, or where the court grants an interlock exemption. A penalty unit in NSW is currently $110. A second or subsequent offence means a second major traffic offence within the last five years.
Automatic disqualification, first offence
What a conviction costs you in licence time
These are the periods that apply automatically on conviction, unless the court reduces them to the statutory minimum or makes an interlock order.
Low, special and novice range
Mid range
High range, refusal and DUI
| Penalty | First offence | Second or subsequent |
|---|---|---|
| Penalty notice fine | $722 | Not available |
| Maximum court imposed fine | $2,200 | $3,300 |
| Maximum prison term | Not applicable | Not applicable |
| Automatic disqualification | 6 months | 12 months |
| Minimum disqualification | 3 months | 6 months |
| Immediate police suspension | Yes | Yes |
| Mandatory interlock offence | No | Yes |
| Penalty | First offence | Second or subsequent |
|---|---|---|
| Maximum court imposed fine | $2,200 | $3,300 |
| Maximum prison term | 9 months | 12 months |
| Automatic disqualification | 12 months | 3 years |
| Minimum disqualification | 6 months | 12 months |
| Immediate police suspension | Yes | Yes |
| Mandatory interlock offence | Yes | Yes |
| Penalty | First offence | Second or subsequent |
|---|---|---|
| Maximum court imposed fine | $3,300 | $5,500 |
| Maximum prison term | 18 months | 2 years |
| Automatic disqualification | 3 years | 5 years |
| Minimum disqualification | 12 months | 2 years |
| Immediate police suspension | Yes | Yes |
| Mandatory interlock offence | Yes | Yes |
Combined drink and drug driving offences, introduced on 28 June 2021, carry higher penalties again. A first combined mid range offence carries a maximum fine of $3,300, up to 18 months’ imprisonment and an automatic two year disqualification. A first combined high range offence carries a maximum fine of $5,500, up to two years’ imprisonment and an automatic four year disqualification.
Mandatory interlock orders
How an interlock order changes the numbers
For mid range, high range, DUI, refusal and repeat drink driving offences, the court must make a mandatory interlock order unless it grants an exemption. An interlock order shortens your disqualification, then requires you to drive only a vehicle fitted with an approved breath testing device, on a zero alcohol condition, for the interlock period that follows.
| Offence | Disqualification | Minimum interlock period |
|---|---|---|
| Low, special or novice range, second offence | 1 to 3 months | 12 months |
| Mid range, first offence | 3 to 6 months | 12 months |
| Mid range, second offence | 6 to 9 months | 24 months |
| High range, refusal or DUI, first offence | 6 to 9 months | 24 months |
| High range, refusal or DUI, second offence | 9 to 12 months | 48 months |
Can I be exempt from an interlock order?
Sometimes, but the grounds are narrow and the application must be made at sentence. Under section 212 of the Road Transport Act 2013, the court can only make an interlock exemption order if you prove that:
- you do not have access to a vehicle in which to install an interlock device, or
- you have a medical condition, diagnosed by a registered medical practitioner, that prevents you from providing a sufficient breath sample, and the device cannot reasonably be modified, or
- for a first mid range offence only, a mandatory interlock order would cause you severe hardship and an exemption is more appropriate in all the circumstances.
The Act expressly rules out an exemption based only on cost, on needing to drive for work, or on the registered owner of the car refusing consent. Exemption applications are won on evidence, usually affidavits, medical reports and financial material, prepared properly before the sentence date.
What an interlock costs, and the trade off
Expect roughly $2,500 to $3,000 across a 12 month interlock period once installation, monthly lease and removal are counted. Financial assistance is available through Transport for NSW in cases of genuine hardship. The advantage is that you are back on the road far sooner. The disadvantage is that you cannot drive any vehicle without a device fitted, which is a real problem if you drive work vehicles or more than one car. We work through both paths with you before you are sentenced, because the disqualification consequences are very different.
Step by step
What happens after you are charged
The roadside test and breath analysis
A positive roadside breath test leads to a breath analysis at a station or booze bus. That reading is the one used in court, and it must be taken lawfully and within two hours of driving.
Charge, penalty notice or immediate suspension
You are given a court attendance notice, or a penalty notice for an eligible first low, special or novice range offence. For mid and high range readings, police suspend your licence on the spot.
The first 28 days
This is when a suspension appeal must be filed and when the best preparation starts. Getting advice now is what keeps options open later.
Reviewing the brief and the fact sheet
We obtain the police fact sheet and brief, check the legality of the test, the timing, the calibration and the identification of the driver, and tell you whether the charge is defensible.
Plea and preparation
If you plead guilty, the sentence is built well before the hearing: references, a letter of apology, the Traffic Offender Program, and where relevant an assessment or treatment evidence.
Sentence, interlock and licence
The magistrate deals with conviction, fine, disqualification and the interlock question in one hearing. Disqualification is usually backdated to the date police suspended you.
Your options
Defences to a drink driving charge
Not every PCA charge is a guilty plea. The prosecution has to prove the reading, the driving and the lawfulness of the test. These are the arguments that most often succeed, and they need to be identified early, before evidence goes stale.
Disputing the reading
Alcohol absorbs and eliminates over time, so the reading at the station is not always your blood alcohol concentration when you were driving. A pharmacologist can calculate the likely reading at the time of driving. This can lead to a charge being withdrawn, or reduced from high range to mid range.
The two hour rule
Police cannot require a breath analysis more than two hours after the driving. If the timing does not work, the evidence goes.
The home safety rule
Police cannot require a breath test or analysis from you at your home. A test taken on your own property is not lawfully obtained.
You were not the driver
Where identification of the driver is genuinely in issue, the prosecution must prove it beyond reasonable doubt.
Honest and reasonable mistake
Narrow, but available in limited circumstances, for example spiked drinks or a genuine and reasonable belief about elimination time.
Medical grounds for a refusal
On a refusal charge, it is a defence that you were medically unable to provide the sample. That needs medical evidence, not assertion.
Often misunderstood
Refusing a breath test is not the same as refusing a breath analysis
Both are offences under clause 16 of Schedule 3 to the Road Transport Act 2013, but they are worlds apart in consequence.
Refusing a breath test
Maximum fine of 10 penalty units, currently $1,100. There is no automatic disqualification, although the court has a discretion to disqualify.
Refusing a breath analysis
Treated as seriously as high range PCA: up to $3,300 and 18 months’ imprisonment for a first offence, up to $5,500 and two years for a second, an automatic three year disqualification, and a mandatory interlock order.
Refusing the second test at the station is never the safer option. If you have already refused, get advice immediately, because the medical grounds defence has to be documented while the evidence still exists.
The question everyone asks
Can I avoid a conviction and keep my licence?
A conviction means the offence goes on your record, and disqualification follows automatically. Two orders avoid that outcome: a dismissal under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, and a Conditional Release Order without conviction under section 10(1)(b). Neither is available for the asking. The court is weighing your record, the reading, the manner of driving, the reason you were driving and what you have done since.
For low, special and novice range first offences with a clean record, a non conviction order is a realistic goal in a well prepared case. For mid range it is harder. For high range it is rare, and that is not an accident. In a 2004 guideline judgment on high range PCA (Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act (No 3 of 2002) [2004] NSWCCA 303), the Court of Criminal Appeal held that a non conviction order should be an exceptional outcome, and set out the factors that make an offence worse:
- the degree of intoxication above the limit
- erratic or aggressive driving, or a collision, which often brings a separate charge of negligent driving or dangerous driving
- a high risk of danger, such as passengers, a long journey, or a busy road at a busy time
- the length and nature of the journey
- the number of people actually put at risk
The same judgment recognised the ordinary mitigating features: a good driving record, good character, a genuinely low risk of reoffending and a plea entered early. Getting the balance of those factors in front of the magistrate, with evidence rather than assertion, is the work.
What a court can order at sentence
- Section 10(1)(a) dismissal. Guilty, but the charge is dismissed. No conviction, no penalty, no disqualification.
- Conditional Release Order without conviction. A good behaviour bond of up to two years with no conviction recorded, supervised or unsupervised.
- Conviction with no other penalty. Under section 10A, a conviction is recorded and disqualification follows, but no further penalty.
- Fine. Can be combined with a bond. Usually payable within 28 days, with time to pay available on application.
- Conditional Release Order with conviction. A bond following a conviction, with conditions such as abstinence, treatment or supervision.
- Community Correction Order. Up to three years, and may include community service, curfews or a supervision condition.
- Intensive Correction Order. A sentence of imprisonment served in the community under strict supervision, with conditions such as home detention or electronic monitoring.
- Full time imprisonment. A real possibility on high range and repeat offences, particularly where there was a collision or a bad record.
Your licence
Suspensions, appeals and getting back on the road
Police suspended my licence at the roadside. Can I appeal?
Yes, to the Local Court, and the application must be filed within 28 days of the suspension notice. The suspension stays in force while the appeal is pending. The court can only lift or vary it if satisfied there are exceptional circumstances, and it is not permitted to take the circumstances of the alleged offence into account. Needing your licence for work, school or family is ordinary, not exceptional, so these appeals turn on how the whole picture is put together. See our pages on police suspension appeals and Transport for NSW licence appeals.
Is there such a thing as a work licence in NSW?
No. Despite what you may have been told, NSW has no work licence, restricted licence or hardship licence. If you are disqualified, you cannot drive at all. That is exactly why the length of the disqualification, and the interlock decision, matter so much at sentence.
Removing a disqualification early
If you have already served a long disqualification and stayed offence free for the required period, you may be able to apply to the Local Court to have the balance removed. See removing a licence disqualification.
Other consequences worth knowing
- Two drink driving convictions within five years means passing the Driver Knowledge Test again before you can be relicensed.
- Police can confiscate a vehicle or its number plates for repeat mid range, high range, combined and refusal offences.
- A conviction sits on your criminal record and can affect employment, professional registration and travel, particularly to the United States.
- Driving while disqualified is a separate and serious offence. See licence offences.
The Traffic Offender Program
The Traffic Offender Intervention Program is a court recognised road safety course. Completing it before sentence shows the magistrate insight rather than words, and it is one of the few things genuinely within your control between charge and hearing. We refer clients to a provider near them as soon as we are engaged.
Why Catron Simmons
Why drivers choose us
A prosecutor’s eye for the brief
With a background in prosecution, we read the police brief the way the other side does, and we find the timing, procedure and evidence problems that decide these cases.
40+ years’ combined experience
Hundreds of PCA matters in the Local Courts we regularly appear in, from first low range readings to repeat high range charges with a real risk of gaol.
Wherever your matter is listed
Drink driving charges are heard in the court nearest to where you were stopped, which is often nowhere near home. We appear in Local Courts across New South Wales, so you are not left finding a second lawyer in another town.
You deal with a principal
We are a boutique firm. You talk to the solicitor who will appear for you, not a call centre, and we are contactable outside business hours.
Common questions
Drink driving in NSW: your questions answered
Will I definitely lose my licence?
Not always. If the court records a conviction, a disqualification follows automatically, so the only way to keep your licence is a section 10(1)(a) dismissal or a Conditional Release Order without conviction. That is a realistic goal on a first low, special or novice range offence with a clean record, harder on mid range, and rare on high range. Where a conviction is unavoidable, the work shifts to reducing the disqualification to the legal minimum.
Should I just pay the penalty notice for a low range reading?
Often yes, because paying it avoids a conviction and finalises the matter, though you still serve a three month suspension. But you can elect to take the notice and the suspension to court to try for a better result. That carries risk, because the court can convict you and impose a larger penalty. It depends on your record, your reading and how badly you need to be driving. Talk it through before the election date passes.
Can I get a work licence or restricted licence in NSW?
No. NSW has no work licence, restricted licence or hardship licence of any kind. If you are disqualified you cannot drive for any purpose, which is why the disqualification period and the interlock decision are the things worth fighting over.
Police suspended my licence on the spot. What can I do?
You can appeal to the Local Court, but the application must be filed within 28 days of the suspension notice and the deadline cannot be extended. The court can only lift or vary the suspension if there are exceptional circumstances, and it cannot consider the circumstances of the alleged offence. Get advice quickly, because the material takes time to prepare.
What is a mandatory interlock order, and can I avoid one?
For mid range, high range, DUI, refusal and repeat offences, the court must impose an interlock order unless it grants an exemption. You serve a shorter disqualification, then drive only with an approved breath testing device fitted, on a zero alcohol condition. An exemption under section 212 requires proof that you have no access to a vehicle in which to install a device, or a diagnosed medical condition preventing a sufficient breath sample. Cost alone and needing to drive for work are expressly excluded.
Do I have to go to court?
Yes, unless your matter is finalised by penalty notice. You can send in a written notice of pleading, but we do not recommend it. On a written plea the magistrate has only the police fact sheet and your record, with nothing about you, your circumstances or your reasons, and the penalty is usually heavier as a result. If you cannot attend, we can appear for you.
Is refusing a breath test the same as refusing a breath analysis?
No. Refusing a roadside breath test carries a maximum fine of $1,100 and no automatic disqualification. Refusing the breath analysis at the station is treated like high range PCA: up to $3,300 and 18 months’ imprisonment for a first offence, an automatic three year disqualification and a mandatory interlock order.
Can the reading be wrong?
It can be wrong, or it can be higher than your blood alcohol concentration was when you were actually driving, because alcohol keeps absorbing after your last drink. A pharmacologist can give evidence calculating the likely reading at the time of driving. In the right case this leads to the charge being withdrawn or reduced to a lower range, which changes the penalty completely.
Does the Traffic Offender Program actually help?
Yes, in most cases. Magistrates give real weight to a completed course because it shows insight and a genuine effort at rehabilitation before sentence rather than after. It is one of the few things you can do yourself that measurably improves the outcome.
How long will my matter take?
A straightforward guilty plea is often finalised at the first mention, usually six to eight weeks after you are charged. If you are defending the charge, the matter is adjourned for the police brief to be served and then listed for hearing, which commonly takes four to six months. Adjourning to complete the Traffic Offender Program adds time but is almost always worth it.
Keep reading
Related traffic law pages
Driving with an illicit substance →
Reckless and dangerous driving →
Negligent driving →
Police pursuit →
Heavy vehicle offences →
Appealing a police suspension →
Transport for NSW licence appeals →
Removing a disqualification →
Alcohol interlock orders →
Licence offences and driving while disqualified →
All traffic law services →
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Charged with drink driving? Let’s talk today.
Send us your court attendance notice, penalty notice or suspension notice. We will tell you what you are facing, whether it can be defended and what your realistic options are, usually within a day.