Drink Driving / PCA and drive with illicit substance in Oral Fluid
Drink Driving is often described as a PCA (Prescribed Concentration of Alcohol). PCA refers to the limits set for a persons Blood Alcohol Concentration in their blood or their BAC level. Driving under the influence. The difference between these offences is typically surrounding the manner in which the Police collate the evidence for the charges before the court.
BAC Levels:
Novice range PCA – a learner or provisional driver with a BAC above zero.
Low range PCA – a driver with a blood alcohol level between 0.05 to 0.079.
Mid range PCA – a driver with a blood alcohol level between 0.08 to 0.149.
High range PCA –a driver with a BAC above 0.15.
Special range PCA – a special category driver with a BAC limit over 0.02.
The Police can suspend your drivers licence following the PCA charge. You should seek legal advice, should you wish to contest this police suspension, as it may not be in your best interests longer term.
| Low, Novice or Special Range PCA |
| Penalty |
First offence |
Second or subsequent offence |
| Infringement Notice Fine |
$561 |
N/A |
| Maximum fine |
$2,200 |
$3,300 |
| Maximum imprisonment |
N/A |
N/A |
| Mandatory Interlock offence? |
No |
Yes |
| Maximum disqualification with interlock |
NA |
3 months |
| Minimum disqualification with interlock |
NA |
1 month |
| Minimum interlock period |
N/A |
12 months |
| Automatic disqualification if no interlock |
6 months |
12 months |
| Minimum disqualification if no interlock |
3 months |
6 months |
| Immediate licence suspension |
Discretionary |
Discretionary |
|
Mid Range PCA |
| Penalty |
First offence |
Second or subsequent offence |
| Maximum fine |
$2,200 |
$3,300 |
| Maximum imprisonment |
9 months |
12 months |
| Mandatory Interlock offence? |
Yes |
Yes |
| Maximum disqualification with interlock |
6 months |
9 months |
| Minimum disqualification with interlock |
3 months |
6 months |
| Minimum interlock period |
12 months |
2 years |
| Automatic disqualification if no interlock |
12 months |
3 years |
| Minimum disqualification if no interlock |
6 months |
12 months |
| Immediate licence suspension |
Yes |
Yes |
|
|
|
|
|
| High Range PCA |
| Penalty |
First offence |
Second or subsequent offence |
| Maximum fine |
$3,300 |
$5,500 |
| Maximum imprisonment |
18 months |
2 years |
| Mandatory Interlock offence? |
Yes |
Yes |
| Maximum disqualification with interlock |
9 months |
12 months |
| Minimum disqualification with interlock |
6 months |
9 months |
| Minimum interlock period |
2 years |
4 years |
| Automatic disqualification if no interlock |
3 years |
5 years |
| Minimum disqualification if no interlock |
12 months |
2 years |
| Immediate licence suspension |
Yes |
Yes |
Refuse Breath Analysis
|
| Penalty |
First offence |
Second or subsequent offence |
| Maximum fine |
$3,300 |
$5,500 |
| Maximum imprisonment |
18 months |
2 years |
| Mandatory Interlock offence? |
Yes |
Yes |
| Maximum disqualification with interlock |
9 months |
12 months |
| Minimum disqualification with interlock |
6 months |
9 months |
| Minimum interlock period |
2 years |
4 years |
| Automatic disqualification if no interlock |
3 years |
5 years |
| Minimum disqualification if no interlock |
12 months |
2 years |
| Immediate licence suspension |
Yes |
Yes |
| DUI – Driving Under the Influence |
| Penalty |
First offence |
Second or subsequent offence |
| Maximum fine |
$3,300 |
$5,500 |
| Maximum imprisonment |
18 months |
2 years |
| Mandatory Interlock offence? |
Yes (if under the influence of alcohol) |
Yes (if under the influence of alcohol) |
| Maximum disqualification with interlock |
9 months |
12 months |
| Minimum disqualification with interlock |
6 months |
9 months |
| Minimum interlock period |
2 years |
4 years |
| Automatic disqualification if no interlock |
3 years |
5 years |
| Minimum disqualification if no interlock |
12 months |
2 years |
| Immediate licence suspension |
Yes |
Yes |
Defences to Drinking Driving
There are a number of possible defences to drink Driving and/or DUI, 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 to PCA/DUI are:
- disputing the reading – that is the level of alcohol 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
- not under the influence of any drug and/or alcohol at the time of driving.
Interlock Orders
An Interlock orders is an order made by the court during sentencing at court and follows a period of suspension or disqualification. The Interlock orders in NSW are managed by Transport NSW.
An interlock device is an in-car breathalyzer which is installed in a vehicle. It prevents a vehicle from being started until a negative alcohol sample is provided. Contrary to popular belief the interlock device does not affect the operation of the vehicle and cannot turn off the vehicle’s engine once it is running.
Can I be exempt from an Interlock Order?
In certain circumstances a person can be exempt from an interlock order in NSW, this is determined during sentencing at court. The grounds for the application differs depending on the type of offence and if it is a persons first or subsequent offence.
An exemption order generally speaking when:
- It would cause severe hardship to the person; and
- The making of the interlock exemption order is more appropriate in all the circumstances
Generally, these orders can centre around a person that does have access to a car or there is medical condition that prevents you from providing a sample of your breath. Both of these submissions would require extensive evidence to the court to be able to make a decision.
Novice Range Drink Driving / PCA
Novice Range Drink Driving / PCA is when the driver of a motor vehicle is caught with a blood alcohol concentration between zero up to 0.019. This category of offence only applies to drivers who do not hold a full licence such as learners and provisional licence categories. Drivers such as these are subject to a blood alcohol limit of zero.
What penalty could I be facing for Novice Range Drink Driving / PCA?
If it is your first major offence in five years and you are convicted the maximum penalty is a fine of $1, 100. Your licence will be disqualified for an automatic period of six months; however, the court may reduce this period of disqualification to three months.
If it is your second major offence or subsequent alcohol related offence within the last five years and you are convicted the maximum penalty is a fine of $2,200. Your licence will be disqualified for an automatic period of twelve months, which the court can reduce to six months. Under the Interlock Program you can have an automatic disqualification of three months, this can be reduced to one month with an interlock period of 12 months.
| Novice Range Drink Driving / PCA |
| First Major offence within 5 year Period |
|
| Maximum Fine |
$1,100 |
| Automatic Disqualification |
6 Months |
| Minimum Possible Disqualification |
3 Months |
|
|
| Second Major offence within 5 year Period |
|
| Maximum Fine |
$2,200 |
| Automatic Disqualification under Interlock |
3 Months |
| Minimum Possible Disqualification under Interlock |
1 Month |
| Interlock Period |
12 Months |
Special Range Drink Driving / PCA
Special Range Drink Driving / PCA is when the driver of a motor vehicle is caught with a blood alcohol concentration of 0.02 up to 0.49.
What penalty could I be facing for Special Range Drink Driving / PCA?
If convicted of this offence and it is your first major or drink driving offence in a five year period, the maximum penalty for this offence is a fine of $1,100. Your licence will be disqualified for an automatic period of six months; however, the court may reduce this period of disqualification to three months.
If convicted of this offence and it is your second major or drink driving offence in a five year period, the maximum penalty is a fine of $2,200. Your licence will automatically be disqualified for a period of three months, but this can be reduced by the court to one month. An automatic and mandatory interlock period of twelve months would then apply.
At Catron Simmons Lawyers, we can offer you qualified advice best suited for your situation to ensure the best outcome for your matter.
| Special Range Drink Driving / PCA |
| First Major offence within 5 year Period |
|
| Maximum Fine |
$1,100 |
| Automatic Disqualification |
6 Months |
| Minimum Possible Disqualification |
3 Months |
|
|
| Second Major offence within 5 year Period |
|
| Maximum Fine |
$2,200 |
| Automatic Disqualification under Interlock |
3 Months |
| Minimum Possible Disqualification under Interlock |
1 Month |
| Interlock Period |
12 Months |
Low Range Drink Driving / PCA (Penalty Notice)
Low Range Drink Driving / PCA is when the driver of a motor vehicle is caught with a blood alcohol concentration of 0.050 up to 0.79.
Recently, legislation was introduced so that Police could proceed with this offence via penalty notice or ticket.
The amount is currently set at $556 meaning that it will appear on your ticket record but not be a conviction.
You will also be suspended from holding a NSW licence for a period of three months.
You can opt to take both the infringement and licence suspension to court in order to try and reduce the penalty. However, this is not without risk and you should consult Catron Simmons Lawyers as experts in drink driving as the court can decide to increase the penalty and/or record a conviction.
Low Range Drink Driving / PCA (Charge)
Low Range Drink Driving / PCA is when the driver of a motor vehicle is caught with a blood alcohol concentration of 0.050 up to 0.79.
If convicted of this offence and it is your first major or drink driving offence in a five year period, the maximum penalty for this offence is a fine of $2,200. Your licence will be disqualified for an automatic period of six months; however, the court may reduce this period of disqualification to three months
If convicted of this offence and it is your second major or drink driving offence in a five year period, the maximum penalty is a fine of $3,300. Your licence will automatically be disqualified for a period of three months, but this can be reduced by the court to one month. An automatic and mandatory interlock period of twelve months would then apply.
At Catron Simmons Lawyers, we can offer you qualified advice best suited for your situation to ensure the best outcome for your matter.
| Low Range Drink Driving / PCA |
| First Major offence within 5 year Period |
|
| Maximum Fine |
$2,200 |
| Automatic Disqualification |
6 Months |
| Minimum Possible Disqualification |
3 Months |
|
|
| Second Major offence within 5 year Period |
|
| Maximum Fine |
$3,300 |
| Automatic Disqualification under Interlock |
3 Months |
| Minimum Possible Disqualification under Interlock |
1 Month |
| Interlock Period |
12 Months |
Mid Range Drink Driving / PCA
Mid Range Drink Driving / PCA is when the driver of a motor vehicle is caught with a blood alcohol concentration of 0.080 up to 0.149.
What penalty could I be facing for Mid Range Drink Driving / PCA?
If convicted of this offence and it is your first major or drink driving offence in a five year period, the maximum penalty for this offence is a fine of $2,200 and/or imprisonment of nine months. Your licence will be disqualified under the interlock program for a minimum of three months and a maximum of six period. An automatic and mandatory interlock period of 12 months.
If convicted of this offence and it is your second major or drink driving offence in a five year period, the maximum penalty is a fine of $3,300 and/or imprisonment of twelve months. Your licence will be disqualified under the interlock program for a minimum of six months and a maximum of nine months. A minimum and mandatory interlock period of 24 months would then apply.
At Catron Simmons Lawyers, we can offer you qualified advice best suited for your situation to ensure the best outcome for your matter.
| Mid Range Drink Driving / PCA |
| First Major offence within 5 year Period |
|
| Maximum Fine |
$2,200 |
| Maximum Imprisonment |
9 Months |
| Minimum Disqualification under Interlock |
3 Months |
| Maximum Disqualification under Interlock |
6 Months |
| Minimum Interlock Period |
12 Months |
|
|
| Second Major offence within 5 year Period |
|
| Maximum Fine |
$3,300 |
| Maximum Imprisonment |
12 Months |
| Minimum Disqualification under Interlock |
6 Months |
| Maximum Disqualification under Interlock |
9 Month |
| Minimum Interlock Period |
24 Months |
High Range Drink Driving / PCA
High Range Drink Driving / PCA is when the driver of a motor vehicle is caught with a blood alcohol concentration of 0.150 and above.
What penalty could I be facing for High Range Drink Driving / PCA?
If convicted of this offence and it is your first major or drink driving offence in a five year period, the maximum penalty for this offence is a fine of $3,300 and/or imprisonment of 18 months. Your licence will be disqualified under the interlock program for a minimum of six months and a maximum of nine period. An automatic and mandatory interlock period of 24 months then follows this.
If convicted of this offence and it is your second major or drink driving offence in a five year period, the maximum penalty is a fine of $5,500 and/or imprisonment of two years. Your licence will be disqualified under the interlock program for a minimum of nine months and a maximum of 12 months. A minimum and mandatory interlock period of 48 months would then apply.
At Catron Simmons Lawyers, we can offer you qualified advice best suited for your situation to ensure the best outcome for your matter.
| High Range Drink Driving / PCA |
| First Major offence within 5 year Period |
|
| Maximum Fine |
$3,300 |
| Maximum Imprisonment |
18 Months |
| Minimum Disqualification under Interlock |
6 Months |
| Maximum Disqualification under Interlock |
9 Months |
| Minimum Interlock Period |
24 Months |
|
|
| Second Major offence within 5 year Period |
|
| Maximum Fine |
$5,500 |
| Maximum Imprisonment |
24 Months |
| Minimum Disqualification under Interlock |
9 Months |
| Maximum Disqualification under Interlock |
12 Month |
| Minimum Interlock Period |
48 Months |
In High Range PCA 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 or Community Release Order without conviction (CRO without conviction) would be rarely utilised.
Refuse Breath Test / Analysis
It is an offence to refuse a Breath test or analysis as long as that direction is lawful.
If you have failed to submit to a breath test and/or analysis you can be charged with the offences above.
There are strict circumstances where these charges can be defended, and you should consult Catron Simmons Lawyers to provide you expert advice in regards to these matters. However, some of the defence may be that you were unable to comply with the request due to:
- Medical reasons
- More than two hours had passed since the driving
- You were at your property at the time the request was made
What is the penalty for refusing breath test and/or breath analysis?
If convicted of this offence and it is your first major or drink driving offence in a five year period, the maximum penalty for this offence is a fine of $3,300 and/or imprisonment of 18 months. Your licence will be disqualified under the interlock program for a minimum of six months and a maximum of nine period. An automatic and mandatory interlock period of 24 months then follows this.
If convicted of this offence and it is your second major or drink driving offence in a five year period, the maximum penalty is a fine of $5,500 and/or imprisonment of two years. Your licence will be disqualified under the interlock program for a minimum of nine months and a maximum of 12 months. A minimum and mandatory interlock period of 48 months would then apply.
At Catron Simmons Lawyers, we can offer you qualified advice best suited for your situation to ensure the best outcome for your matter.
| Refuse Breath Analysis |
| First Major offence within 5 year Period |
|
| Maximum Fine |
$3,300 |
| Maximum Imprisonment |
18 Months |
| Minimum Disqualification under Interlock |
6 Months |
| Maximum Disqualification under Interlock |
9 Months |
| Minimum Interlock Period |
24 Months |
|
|
| Second Major offence within 5 year Period |
|
| Maximum Fine |
$5,500 |
| Maximum Imprisonment |
24 Months |
| Minimum Disqualification under Interlock |
9 Months |
| Maximum Disqualification under Interlock |
12 Month |
| Minimum Interlock Period |
48 Months |
Driving Under the Influence (DUI)
Driving under the influence is when the driver of motor vehicle is under the influence of alcohol and/or drugs.
What is the penalty for Driving under the influence (DUI)?
If convicted of this offence and it is your first major or Driving under the influence offence in a five year period, the maximum penalty for this offence is a fine of $3,300 and/or imprisonment of 18 months. The automatic disqualification period is three years, with a minimum of 12 months. The court may choose to make an interlock order which reduces the amount of disqualification period.
If convicted of this offence and it is your second major or driving under the influence offence in a five year period, the maximum penalty is a fine of $5,500 and/or imprisonment of two years. The automatic disqualification period is five years, with a minimum of two years. The court may choose to make an interlock order which reduces the amount of disqualification period
At Catron Simmons Lawyers, we can offer you qualified advice best suited for your situation to ensure the best outcome for your matter.
| Driving under the Influence (DUI) |
| First Major offence within 5 year Period |
|
| Maximum Fine |
$3,300 |
| Maximum Imprisonment |
18 Months |
| Automatic Disqualification Period |
3 Years |
| Minimum Disqualification Period |
18 Months |
|
|
| Second Major offence within 5 year Period |
|
| Maximum Fine |
$5,500 |
| Maximum Imprisonment |
24 Months |
| Automatic Disqualification Period |
5 Years |
| Minimum Disqualification Period |
2 Years |
Disputing the reading or Blood Alcohol Concentration
This defence involves a medical expertise giving evidence that the reading at the time of driving was lower, than when Police completed the test with the breathalyser.
This notion is based on the nature of absorption in the blood versus time and body’s ability to process that alcohol content.
It may be the case, that your alcohol content level is not correct, which may result in the withdrawal/dismissal of the charge OR the charge being reduced for instance from high range to middle range PCA depending on circumstances.
Can I get a work licence for Drink Driving?
No, despite popular opinion there is no such thing as a work licence in NSW.
My Licence has been suspended, What can I do?
You need to lodge an application to the Local Court, this application must be within 28 days so it is important to get legal advice early.
The test for this appeal is quite high. The applicant must show that there are “exceptional circumstances” as to why you need a licence. Therefore, reasoning such as transport to/from work, school and/or even having your licence as part of your job are not considered exceptional or extraordinary.
See Police Licence Appeals OR RMS / Transport NSW Licence Appeals for more information.
Catron Simmons Lawyers, can assist you in preparing, the application to give you the best chance of returning to driving as soon as possible.
Interlock Program
The interlock program has been in place since early 2015. An interlock is an electronic device or breath testing machine the is linked to the ignition of the vehicle. When attempting to put the vehicle into motion the machine will require a breath sample testing for the presence of alcohol. The vehicle will also require random breath tests whilst driving as well.
If the interlock machine detects ay alcohol the car will shutdown and prevent the person from driving.
The advantage of the interlock program is that it gets you on the road quicker than your disqualification period would otherwise be.
The disadvantage of the interlock program is that you are not permitted to drive a vehicle that doesn’t have the interlock machine fitted to it. This causes problems in cases of employment or where you may operate one or more vehicles.
The cost of the interlock device and maintenance is about $2,000 to install and a further $2,000 to maintain over the course of a year.
Financial assistance in cases of severe financial hardship or concessions may be available from the Roads and Traffic Authority and our specialist in traffic offences at Catron Simmons Lawyers can give you more information.
Although a mandatory program, in certain circumstances such as not having access to a vehicle or a medical condition you can apply to be exempt from the interlock program.
Guideline Judgement
In 2014 the full panel of the NSW Criminal Court of Appeal issued a Guideline Judgement (Guideline Judgment for High Range Drink Driving [20014] NSWCCA 303) specifically looking at High Range Drink Driving / PCA, however, the judgement has relevance for all Drink Driving Offences.
This judgement held that section 10 (CRO without conviction) would be rarely utilised.
The judgement mainly by Justice Howie explains a number of factors that can influence or aggravate a Drink Driving offence.
Some Aggravating Factors are:
- Degree of intoxication
- Nature of driving – i.e. stopped due to poor driving behaviour or random breath test
- Length of journey
- Number of persons put at risk i.e. country town versus city, time of day etc
The court also made a number of observation in possible mitigation or the ‘typical’ High Range Drink Driver / PCA such as a good traffic record, good character and risk of re-offending.
What is the Traffic Offender Program?
The Traffic Offender Program “TOP” or the Traffic Offender Intervention Program “TOIP” is a road safety course. It is designed to provide drivers with the information and skills necessary to develop positive attitudes to driving and to change driving behaviours.
More information on Traffic Offenders Program including providers.