Traffic offences in NSW
Driving under the influence (DUI)
DUI is the charge police lay when there is no reliable reading to rely on. The case is built almost entirely out of what the officer says they saw, heard and smelled, and out of what you said back. That makes it a harder charge to prove than a drink driving reading, and a much easier one to make worse at the roadside.
Everything you say at the roadside becomes the evidence
On a DUI there is no machine reading. The prosecution case is the officer’s observations and your answers, and both go into a statement written after the event. You do not have to explain how much you had, when you had it, or how you feel. Get advice before you say anything further. Call 0407 171 626 (Alicia) or 0407 534 594 (Michelle).
Catron Simmons Lawyers are traffic lawyers appearing for drivers charged with alcohol and drug driving offences in Local Courts across New South Wales, from Sydney and the Hills District to the regions.
Driving under the influence is an offence against section 112 of the Road Transport Act 2013. It covers driving, occupying the driver’s seat and attempting to put a vehicle in motion, and supervising a learner, in each case while under the influence of alcohol or any other drug.
It is a major traffic offence, which affects the disqualification you face, whether the court can deal with you without conviction, and what a further offence within five years will cost you.
If alcohol was involved, this is a mandatory interlock offence
Since 3 December 2018, a court convicting a driver of an alcohol DUI must make either a mandatory interlock order or an interlock exemption order. It has no third option. A good deal of the material still online, including on other law firm websites, describes interlock participation as voluntary or as something the court may consider. That has not been the law for years, and it changes the shape of the whole sentence.
On this page
Two different charges
DUI is not a drink driving charge
People use DUI as a general label for drink driving. In New South Wales it is a specific offence, and it is proved in an entirely different way from a prescribed concentration of alcohol charge.
| DUI, s 112 | PCA, s 110 | |
|---|---|---|
| What is proved | That your ability to drive was actually affected | That a concentration of alcohol was present |
| Evidence | Police observations, your answers, any sobriety assessment, sometimes a blood or urine analysis | A breath analysis reading, or a blood analysis |
| Substance | Alcohol or any other drug, including prescription medication | Alcohol only |
| Reading required | No | Yes |
| Where it is used | Where a breath analysis is unavailable, unreliable, out of time, or where the impairment is from drugs | The ordinary drink driving charge |
The practical difference is that the prosecution cannot simply produce a certificate. It has to persuade a magistrate, beyond reasonable doubt, that you were under the influence at the time you drove. That is a factual question, decided on evidence a person gave from memory, and it is contestable in a way a reading is not.
Where drugs are involved
DUI is a separate offence from driving with an illicit substance present, which is proved by presence alone and requires no impairment at all. DUI requires impairment and covers any drug, including one lawfully prescribed to you. Where police suspect drug impairment they can require you to submit to a sobriety assessment and can arrange a blood or urine sample, and refusing carries its own penalties.
The elements
What the prosecution has to prove
Each element must be established beyond reasonable doubt. If one fails, the charge fails.
1. You were driving, or attempting to put the vehicle in motion
Straightforward where police intercepted you. Frequently not where they arrived after a collision, or found you in a stationary car. Occupying the driver’s seat and attempting to start the vehicle is enough, but sitting in a parked car with the keys in your pocket is not, and the difference is a question of evidence.
2. It happened on a road or road related area
The definition is broad and takes in car parks, driveways serving the public, footpaths and nature strips. It does not take in every piece of private land. On rural properties, enclosed worksites and genuinely private driveways the element is arguable.
3. You were under the influence at the time of driving
This is where these matters are won and lost. The prosecution must show your ability to drive was affected, not merely that you had been drinking or had taken something. It relies on the officer’s account of your driving, speech, balance, eyes, coordination and demeanour, on any sobriety assessment, and on whatever you said. Every one of those is a human recollection recorded after the fact.
4. The impairment was caused by alcohol or a drug
The prosecution must connect the impairment to a substance rather than to something else. Where prescription medication is involved this is genuinely difficult for them, because the presence of a drug in your system is not the same as that drug affecting your driving on the night.
The innocent explanations are the same as the guilty ones
Bloodshot eyes, unsteadiness, slurred or hesitant speech and poor coordination are also produced by fatigue, shift work, illness, a head injury from the collision itself, diabetes, a stroke, medication taken exactly as directed, and simple fear at being pulled over at two in the morning. A fact sheet records the observation. It does not record the alternative.
What you are facing
Penalties and disqualification
A penalty unit in NSW is currently $110. The maximum fine and the maximum term of imprisonment are the same whether the influence was alcohol or a drug. What the licence disqualification looks like is not.
| Offence | Maximum fine | Maximum gaol |
|---|---|---|
| First offence | $3,300 | 18 months |
| Second or subsequent major offence within 5 years | $5,500 | 2 years |
Alcohol DUI: an interlock order, or an exemption
Because an alcohol DUI is a mandatory interlock offence, the ordinary disqualification provisions do not apply. On conviction the court must make one of two orders, and the disqualification depends on which.
| Interlock order | Interlock exemption order | |
|---|---|---|
| First offence, disqualification | 6 months minimum, 9 months maximum | 3 years automatic, 12 months minimum |
| First offence, interlock period | 24 months | Not applicable, Sober Driver Program instead |
| Second or subsequent, disqualification | 9 months minimum, 12 months maximum | 5 years automatic, 2 years minimum |
| Second or subsequent, interlock period | 48 months | Not applicable, Sober Driver Program instead |
Read the two columns against each other before deciding you do not want an interlock. A first offender who takes the interlock is off the road for six to nine months and then driving. A first offender who obtains an exemption is off the road for at least a year and probably three, and still has to complete a program. The exemption is not the soft option it sounds like.
Drug DUI
Where the influence was a drug rather than alcohol, the interlock scheme does not apply and the ordinary major offence disqualification does.
| Offence | Automatic disqualification | Minimum disqualification |
|---|---|---|
| First offence | 3 years | 12 months |
| Second or subsequent major offence within 5 years | 5 years | 2 years |
The automatic period applies unless the court orders otherwise. It can order a shorter period down to the minimum shown, or a longer one. Any disqualification is in addition to the fine or other penalty, and in addition to any disqualification you are already serving.
What makes it a second offence
Any prior major traffic offence within five years will do it, not just another DUI. Drink driving, driving with an illicit substance present, refusing a breath analysis, dangerous or negligent driving occasioning death or grievous bodily harm, police pursuit and the serious Crimes Act driving offences all count. The court attendance notice will usually say whether police allege a second offence, and it is worth checking that against your actual traffic record rather than accepting it.
If alcohol was involved
The alcohol interlock program
An interlock is a breath testing device wired into the ignition. You blow before the vehicle will start, and you blow again at intervals while driving. It photographs you each time and reports the data to Transport for NSW. A zero alcohol limit applies, so a genuine reading from the night before will lock you out.
How it works in practice
- You serve the disqualification first. The interlock period starts when you get the interlock licence, not on the day of sentence.
- You must see a GP for a medical consultation certificate before enrolling, have the device installed by an accredited provider, and then apply in person at a Service NSW centre.
- You can only drive a vehicle fitted with a device. That is the real cost of the program for tradespeople, drivers of work vehicles and anyone who shares a car.
- Servicing is every 30 or 60 days, or 90 days if you qualify. Miss a service by more than seven days and you are locked out.
- If your interlock licence lapses or is suspended, that time does not count towards the period. Failed tests in the last six months can extend it by another six.
- If you receive an interlock order and never enter the program, you are disqualified for five years.
What it costs
Transport for NSW estimates the program at $2,200 to $2,500 a year, covering installation, monthly leasing, servicing and removal, plus a $200 administration fee when the interlock licence is issued. Accredited providers offer a 35% concession to holders of a Pensioner Concession Card, a Low Income Health Care Card or certain Department of Veterans’ Affairs Gold Cards. Transport for NSW also runs a severe financial hardship scheme assessed by the Salvation Army, which can meet part or all of the provider’s fees. Applications take around a fortnight, so start early rather than at the end of the disqualification.
Interlock exemption orders
The court can exempt you, but only on narrow grounds: that you have no access to a vehicle in which to install a device, or that you have a medical condition that prevents you using one. Living in a regional or remote area is expressly not a ground. The exemption must be asked for at sentence and it has to be proved, so the medical or vehicle evidence needs to be ready on the day.
If an exemption is made, your licence is cancelled, the longer disqualification in the table above applies, and you must complete the Sober Driver Program at your own expense during the disqualification. You can change your mind later and join the interlock program without going back to court.
The outcome that avoids all of it
Section 10, and the five year rule
Every disqualification on this page follows from a conviction. A section 10 dismissal or a conditional release order without conviction means no conviction is recorded, and so no disqualification, no interlock order and no interlock exemption order. On a DUI it is the only outcome that leaves your licence untouched, which is why the plea in mitigation is where the work goes.
It is discretionary and it is not common on a serious matter, but it is not out of reach on a first offence with a good record, particularly where the reading evidence is weak or the impairment is genuinely explicable. What moves a magistrate is a clean record, a real explanation rather than an excuse, evidence of what the licence is used for, and demonstrated insight. A completed Traffic Offender Intervention Program carries real weight, and so does engagement with an alcohol or drug counsellor where that is honestly warranted. Check the provider is on the Local Court’s registered list.
You only get one in five years, and it is worth saving
Section 203 of the Act removes the court’s power to make a section 10 order for a major traffic offence if section 10 has already been applied to you for another major offence in the five years before the determination. It is not a matter of discretion and no amount of mitigation cures it. If you had a section 10 on a low range PCA two years ago, it is not available to you now.
Your options
Defences
- You were not under the influence. The central issue on most DUI charges. The observations relied on are consistent with fatigue, illness, injury, medication or anxiety, and the prosecution has to exclude those beyond reasonable doubt rather than simply assert impairment.
- The testing or assessment procedure was not followed. Sobriety assessments, blood and urine sampling and the arrangements for taking them are governed by prescribed requirements. Where those were not met, the evidence obtained may not be admissible.
- You were not the driver. Where police did not see you drive, identity is genuinely in issue, and it is not your job to close that gap for them.
- Not a road or road related area. Narrower than most people hope, but real on rural properties, private acreage and enclosed sites.
- The time gap. The offence is being under the influence at the time of driving. Where there is a substantial gap between the driving and the observations, particularly after a collision, what the officer saw at the roadside may say little about the driver’s state an hour earlier.
- Necessity or duress. Rare and closely scrutinised, but a genuine emergency has succeeded.
A word on prescription medication
Being prescribed a medication and taking it as directed is not, by itself, an answer to a DUI charge, and it is a mistake to walk into court expecting it to be. What it does is put real weight on the fourth element, because the prosecution must still prove that the medication was affecting your capacity to drive at the time. Your prescribing doctor and, where appropriate, a pharmacologist are often more use than anything you can say from the dock.
Even where the charge cannot be defended, the police fact sheet repays close attention. The manner of driving, the distance travelled, the reason for driving and the description of your condition all bear directly on sentence, and the first draft routinely puts them higher than the evidence supports.
Between the charge and the court date
Your licence before the court date
The immediate suspension
Police can issue an immediate licence suspension notice on the spot, or within 48 hours of charging you, where the charge is DUI. That suspension runs until the charge is heard and determined by a court or is withdrawn. There is no fixed end date on it, which is why these matters should not be adjourned casually.
Appealing it
An immediate suspension can be appealed to the Local Court within 28 days, and the appeal must be brought before the charge is determined. The test is exceptional circumstances, the court cannot take the circumstances of the offence into account, and filing does not pause the suspension. Needing to drive to work or to school, or holding a licence as part of your job, is not exceptional. See licence suspension appeals.
Time served is not wasted
The sentencing court must take into account the period you spent suspended under an immediate suspension notice for the same offence, and that period counts towards any minimum disqualification the Act requires. On a matter you intend to plead guilty to, that materially changes whether an appeal is worth bringing at all.
There is no work licence in NSW
New South Wales has no work licence, restricted licence or hardship licence. If you are suspended or disqualified you cannot drive at all, for any purpose. On an alcohol DUI the interlock licence is the closest thing that exists, and it is only available after the disqualification has been served.
Why Catron Simmons
Why drivers choose us
We test the observations
With a background in prosecution, in highway patrol and as qualified breath analysis operators, we know how these briefs are put together and how sobriety assessments are supposed to be conducted. On a DUI that is the entire case.
We deal with the interlock question early
The interlock order is not an afterthought at sentence. Whether to seek an exemption, and what evidence is needed to get one, is a decision to make weeks before the hearing, not on the morning.
Wherever your matter is listed
These charges are heard where the driving happened, 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
DUI charges: your questions answered
What is the difference between DUI and drink driving?
A PCA charge is proved by a reading. A DUI charge is proved by showing your ability to drive was actually affected, with no reading required. DUI also covers any drug, including prescription medication, where a PCA charge covers alcohol only. In practice police lay DUI where a breath analysis is unavailable, unreliable or out of time, or where the impairment is not from alcohol.
Will I have to fit an interlock?
If the influence was alcohol and you are convicted, yes, unless the court makes an interlock exemption order. Since 3 December 2018 the court has no third option. If the influence was a drug rather than alcohol the interlock scheme does not apply, and the ordinary major offence disqualification does instead.
How long will I lose my licence for?
On a first alcohol DUI with an interlock order, six to nine months, followed by 24 months on an interlock licence. On a first alcohol DUI with an exemption order, three years automatic and 12 months at the shortest. On a first drug DUI, three years automatic and 12 months at the shortest. Second offences within five years are materially longer in each case. A section 10 avoids disqualification altogether.
What does the interlock program cost?
Transport for NSW estimates $2,200 to $2,500 a year for installation, leasing, servicing and removal, plus a $200 administration fee when the licence issues. Concession card holders get 35% off the provider’s fees, and a severe financial hardship scheme assessed by the Salvation Army can cover part or all of them. Apply for assistance well before the disqualification ends, because assessment takes time.
Can I get out of the interlock program?
Only on two grounds: you have no access to a vehicle in which to install a device, or you have a medical condition that prevents you using one. Living regionally is expressly not a ground. Look at the numbers before you ask, because an exemption carries a much longer disqualification and the Sober Driver Program at your own cost.
My medication was prescribed. Is that a defence?
Not on its own. The prosecution still has to prove the medication was affecting your capacity to drive at the time, which is a real hurdle for them, but a lawful prescription does not answer the charge. Material from your prescribing doctor, and in some matters a pharmacologist, is usually worth more than the fact of the prescription.
Can I still get a section 10 if I had one before?
Not for a major traffic offence if section 10 was applied to you for another major offence within the five years before the court determines this one. The court has no power to do it, whatever the mitigation. If your earlier section 10 was for something outside that category, or was longer ago than five years, it does not bar you.
Will I go to gaol?
Imprisonment is available, up to 18 months on a first offence and two years on a second or subsequent, but it is not the usual outcome for a first offence with a good record. It becomes a genuine risk on repeat offending, where there was a collision or injury, or where the driving itself was dangerous.
Police suspended my licence at the roadside. What can I do?
You can appeal to the Local Court within 28 days, and the appeal has to be brought before the charge is heard and determined. The test is exceptional circumstances, which needing your licence for work, study or the school run does not meet, and filing does not pause the suspension in the meantime. Bear in mind that time served on the suspension counts towards any disqualification the court later imposes.
Keep reading
Related traffic law pages
Drink driving and PCA charges →
Driving with an illicit substance →
Combined alcohol and drug offences →
What to do after a drink driving charge →
Licence suspension appeals →
Driver licence offences →
Reckless and dangerous driving →
Negligent driving →
Criminal law →
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Charged with DUI? Let’s talk today.
Send us the court attendance notice, the police fact sheet and any suspension notice. We will tell you whether the impairment evidence can be tested, what the interlock order would mean for you, whether an exemption is worth seeking, and what a realistic outcome looks like.