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The more common offence involves driving with a prescribed concentration of alcohol (PCA)

There are two kinds of drink driving offences in New South Wales. The more common offence involves driving with a prescribed concentration of alcohol (PCA). Drivers can also be convicted of driving under the influence (DUI) when their ability to drive safely has been impaired by the consumption of alcohol.

Drivers in NSW must cooperate with police officers who suspect them of drink driving. Refusing to submit breath or blood samples can result in penalties even if the driver is never convicted of a drink driving offence.

Drink driving offences are the most common criminal offences for which people in NSW are likely to need the services of a lawyer. Penalties can be harsh. Representation that is designed to minimize or avoid those penalties can make a substantial difference in the quality of a driver’s life. The topics below provide basic information about drink driving in NSW, but you should consult with a lawyer if you need legal advice.

PCA Offences

Driving with a prescribed concentration of alcohol (PCA) is the most common drink driving charge in NSW. Section 110 of the Road Transport Act 2013 (NSW) makes it an offence to drive a motor vehicle, or to occupy the driver’s seat and attempt to place the vehicle in motion, while the driver has a PCA as measured in the driver’s blood or breath.

PCA Ranges

The applicable PCA is divided into five categories. The categories determine the applicable penalty for driving with a prescribed concentration of alcohol.

  • Novice range. The novice range PCA is higher than zero but less than 0.02% (corresponding to 0.02 grams of alcohol in 100 millilitres of blood or in 210 millilitres of breath). The novice range applies to any driver who has a learner licence, a provisional licence, or a licence with an ignition interlock restriction, as well as any unlicenced driver.
  • Special range. The special range PCA is 0.02% or higher but less than 0.05%. The special range applies to most drivers for hire (such as taxi drivers), drivers of public transportation, drivers of vehicles with a GVM of more than 13.9 tonnes, and drivers of vehicles carrying dangerous goods.
  • Low range. The low range PCA is 0.05% or higher but less than 0.08%. The low range applies to all drivers.
  • Middle range. The middle range PCA is 0.08% or higher but less than 0.15%. The middle range applies to all drivers.
  • High range. The high range PCA is 0.15% or higher. The high range applies to all drivers.
  • Low, middle, and high range offences also apply to passengers seated next to a learner driver.

PCA Defences

Novice drivers have a defence to the charge if their PCA was under 0.02% and they can prove that:

  • the PCA was caused by consuming food or medicine containing alcohol rather than an alcoholic beverage; or
  • an alcoholic beverage was consumed as part of a religious observance.

Drivers can defend a PCA charge by challenging the accuracy of the test results, the improper administration of the tests, lack of evidence that the driver was driving, and the potential difference between blood alcohol content when the test was given and the time of driving. Other defences may also be available.

PCA Penalties

Penalties vary depending upon the range and whether the driver has been convicted of prior offences. Penalties for PCA offence are discussed in a separate section of our Drink Driving page.

DUI

DUI means driving under the influence of alcohol or drugs. Section 112 of the Road Transport Act 2013 (NSW) defines DUI as being under the influence while driving, while sitting in the driver’s seat and attempting to set the car in motion, or while sitting next to a learner driver who is driving.

“Under the influence” is a judgment call since section 112 does not define the term. Courts generally regard a driver as “under the influence” when the driver’s thinking or behaviour are disturbed by the consumption of alcohol or drugs.

Since PCA offences are defined with precision and are easier to prove, prosecutors prefer to charge a PCA offence when evidence is available to support them. Prosecutors usually charge a DUI offence when the accusation involves driving under the influence of a drug, or when there is no valid breath or blood test available to establish the driver’s blood alcohol content.

Evidence of a DUI usually comes from observations of the driver, including the odor of an intoxicant, slurred speech, poor balance, and erratic driving. Since there may be alternative explanations for those observations, more defences are available to DUI charges than are typical in a PCA case.

Penalties for PCA and DUI Offences

All of the PCA and DUI offences described above are punishable by a fine. PCA offences of 0.08% or above and DUI offences are also punishable by imprisonment as shown on the chart below.

Maximum Sentence of Imprisonment

Offence

1st Offence

Subsequent Offence

Novice Range PCA

 None

  None

Special Range PCA

 None

  None

Low Range PCA

 None

  None

Middle Range PCA

             9 months

            12 months

High Range PCA

           18 months

              2 years

DUI

             9 months

            12 months

In addition to imprisonment, PCA and DUI offences have consequences for driving privileges. The following chart shows the minimum and automatic disqualification periods associated with each offence. The automatic disqualification period is usually imposed, but a court that decides to impose a shorter disqualification generally cannot make it shorter than the minimum.

Disqualification Periods - First Offence

Offence

Automatic

Minimum

Novice Range PCA

             6 months

             3 months

Special Range PCA

             6 months

             3 months

Low Range PCA

             6 months

             3 months

Middle Range PCA

           12 months

             6 months

High Range PCA

             3 years

           12 months

DUI

           12 months

             6 months

Disqualification Periods - Subsequent Offence

Offence

Automatic

Minimum

Novice Range PCA

           12 months

             6 months

Special Range PCA

           12 months

             6 months

Low Range PCA

           12 months

             6 months

Middle Range PCA

             3 years

           12 months

High Range PCA

             5 years

             2 years

DUI

             3 years

           12 months

In some cases, driving privileges can be made contingent upon use of an alcohol interlock device. In some cases, a judge may decide not to record a conviction and will therefore impose no penalty. To determine the penalty that will most likely be applied in your case, and to explore defences that might avoid a penalty, ask for legal advice from a drink driving defence lawyer.

Refusal to Submit to Test

Schedule 3 of the Road Transport Act 2013 (NSW) authorizes the police to request breath or blood tests from drivers under certain circumstances. Those include:

  • Random breath testing of drivers if the officer reasonably believes that the person was driving a vehicle within the previous 2 hours. Officers are authorized to use approved portable devices to conduct those tests.
  • Breath analysis following a drink driving arrest. Officers must use an approved breath analysis instrument in or near a police station or at some other approved location.
  • A blood sample may be taken from an arrested driver (with or without the driver’s consent) who is physically unable to provide a breath sample.
  • A blood sample must be taken from hospitalized accident victims who were driving at the time of the accident.
  • Drug driving laws authorise the police to obtain oral fluid samples from drivers who are suspected of driving under the influence of drugs, and blood samples from drivers who are arrested for driving under the influence of drugs.

Penalties for Refusal

Section 16 of Schedule 3 of the Road Transport Act 2013 (NSW) makes it an offence to refuse to submit to a breath test or breath analysis. The same law makes it an offence to refuse to provide a requested blood sample or to resist legally authorized efforts to draw blood

A refusal to submit to a breath test prior to arrest is punishable by a fine and a license disqualification of not more than 6 months. A refusal to submit to a breath or blood analysis after arrest for drink driving is punishable by imprisonment for up to 18 months for a first offence or 2 years for a subsequent offence. A breath or blood analysis refusal also carries a licence disqualification of 1 to 3 years for a first offence and 2 to 5 years for a subsequent offence.

The consequences of a breath analysis refusal are generally more severe than a PAC conviction. The law is written that way to discourage individuals from refusing tests.

Refusal defences

The medical inability to submit a breath or blood sample is a defence to the charge. A good faith (but unsuccessful) attempt to take a breath test may also be a defence, although a sham (or deliberately unsuccessful) attempt to provide an adequate breath sample is the same as a refusal. Other defences involve the officer’s lack of authority to request the test and the officer’s failure to administer the test properly.

Related offences

Attempting to alter test results or to mask the content of alcohol in a driver’s breath or blood is also an offence. The penalties are generally the same as those that apply to refusing the test.

Hindering or obstructing an officer’s attempt to take a breath or blood sample is an offence that is punishable by a fine. Health care providers who are required to draw blood may be fined if they fail or refuse to do so, although they have a defence if, in their medical judgment, drawing blood would have impaired the health of the patient.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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