Legal Defences to Drink Driving and DUI Charges in New South Wales

If you have been charged with drink driving and are going to court, you will more likely than not feel a sense of apprehension, uncertainty and even distress.

However, it is important to be aware that an experienced traffic lawyer will be able to evaluate your situation and identify any weaknesses in the prosecution case, as well as legal defences that may be available to you.

Here’s an outline of some of the most frequently-prosecuted alcohol-related driving offences, as well as defences that may apply.

Categories of drink driving offences and penalties in NSW

There are a number of drink driving offences outlined under the Road Transport Act 2013 (NSW). These include prescribed concentre of alcohol offences (also known as PCA offences), the offence of driving under the influence and the newly implemented offence of combined drink driving and drug driving.

Novice range drink driving offence

Section 198 (1) of the Act provides that a ‘novice range drink driving offence’ occurs where a learner or provisional driver licence holder is detected with a blood alcohol concentration of between 0.001 and 0.019.

If novice range drink driving is your first major traffic offence within the past 5 years and you choose to have the case dealt with in court are:

1. 3 months of disqualification from driving, and
2. Maximum fine of $2,200.

If it is your 2nd or more major traffic offence within 5 years, the penalties are:

1. 3-month disqualification which can be reduced to 1 month, followed by
2. 12 months during which you must have an interlock device installed to your vehicle, and
3. Maximum fine of $3,300.

Special range drink driving offence

Section 198 (2) of the Act states that a  ‘special range drink driving offence’ occurs where a learner or provisional driver licence holder is detected with a blood alcohol concentration of between 0.020 and 0.049.

If special range drink driving is your first major traffic offence within the past 5 years and you choose to have the case dealt with in court are:

1. 6 months of disqualification from driving, and
2. Maximum fine of $2,200.

If it is your 2nd or more major traffic offence within 5 years, the penalties are:

1. 3-month disqualification which can be reduced to 1 month, followed by
2. 12 months during which you must have an interlock device installed to your vehicle, and
3. Maximum fine of $3,300.

Low range drink driving offence

Section 198 (3) of the Act stipulates that a low range drink driving occurs where a driver is detected with a blood alcohol concentration of between 0.05 and 0.079.

If low range drink driving is your first major traffic offence within the past 5 years and you choose to have the case dealt with in court are:

1. 6 months of disqualification from driving, which can be reduce to a minimum of 3 months, and
2. Maximum fine of $2,200.

The penalties where it is your first major traffic offence within the past 5 years and you choose to have the case dealt with in court are:

1. 6 months of disqualification from driving, which can be reduce to a minimum of 3 months, and
2. Maximum fine of $2,200.

Middle range drink driving offence

Section 198 (4) of the Act sets out that a mid-range drink driving offence occurs where a driver is detected with a blood alcohol concentration of between 0.08 and 0.149.

If mid-range drink driving is your first major traffic offence within the past 5 years, the maximum penalties are:

1. Up to 9 months in prison
2. 6 month driver licence disqualification which can be reduced to 3 months, followed by
3. 12 months during which you must have an interlock device installed to your vehicle, and
4. Fine of $2,200

Alternatively, the court can ‘exempt’ you from the interlock requirement and impose maximum penalties of:

1. Up to 9 months in prison
2. 12 month licence disqualification which can be reduced to 6 months, and
3. Fine of $2,200.

If it is your second or more major traffic offence in the past 5 years the maximum penalties are:

1. Up to 12 months in prison
2. 9 month licence disqualification which can be reduced to 6 months, followed by
3. 24 months during which you must have an interlock device installed to your vehicle, and
4. Fine of $3,300

Alternatively, the court can ‘exempt’ you from the interlock requirement and impose maximum penalties of:

1. Up to 12 months in prison
2. 3 year licence disqualification which can be reduced to 12 months, and
3. Fine of $3,300

But whether it is your first, or second or more, major traffic offence within the past 5 years, there will be no criminal record, licence disqualification or fine where the court deals with you by way of a section 10(1)(a) dismissal, or conditional release order without a conviction – which you may seek unless you have received a non-conviction order for a major traffic offence in the previous 5 years.

High range drink driving offence

And section 198 (5) of the Act makes clear that a high range drink driving offence occurs where a driver is detected with a blood alcohol concentration of at least 0.15.

If high-range drink driving is your first major traffic offence within the past 5 years, the maximum penalties are:

1. Up to 18 months in prison,
2. 9 month driver licence disqualification which can be reduced to 6 months, followed by:
3. 24 months during which you must have an interlock device installed to your vehicle, and
4. Fine of $3,300.

Alternatively, the court can ‘exempt’ you from the interlock requirement and impose maximum penalties of:

1. Up to 18 months in prison,
2. 3 year licence disqualification which can be reduced to 12 months, and
3. Fine of $3,300.

If it is your second or more major traffic offence in the past 5 years the maximum penalties are:

1. Up to 2 years in prison,
2. 12 month licence disqualification which can be reduced to 9 months, followed by:
3. 48 months during which you must have an interlock device installed to your vehicle, and
4. Fine of $5,500.

Alternatively, the court can ‘exempt’ you from the interlock requirement and impose maximum penalties of:

1. Up to 2 years in prison,
2. 5 year licence disqualification which can be reduced to 2 years, and
3. Fine of $5,500.

Driving under the influence offence

Section 112 of Act makes it an offence for a person to operate a vehicle – including occupying the driving seat of a vehicle or supervising a provisional driver – whilst under the influence of alcohol or any other drug.

Driving under the influence is a charge that is normally brought in situations where a person has not been tested for their alcohol concentration, but the facts of the case suggest they were nevertheless affected by alcohol or another drug at the time of driving.

If it is your first major traffic offence in 5 years, the maximum penalty is a fine of $2,200 and/or 9 months imprisonment.

There is also an ‘automatic’ period of disqualification from driving of 3 years which can be reduced by the court to 12 months if there are good reasons to do so.

If the DUI involves alcohol (rather than other drugs), a ‘mandatory interlock order’ applies.

This means the court must order you to spend between 6 and 9 months off the road, before installing a device known as an ‘interlock device’ into your vehicle and having it there for 24 months.

If it is your second or more major traffic offence in the past five years, the maximum penalty is a fine of $3,300 and/or imprisonment for 12 months.

The automatic period of disqualification is 5 years which can be reduced by the magistrate to 2 years.

Again, if the DUI involves alcohol (rather than other drugs), a ‘mandatory interlock order’ will apply.

In this case, the court will need to order you to spend 9 to 12 months off the road, followed by a period of 48 months with an interlock device installed.

Combined drink and drug driving offence

Section 111A of the Road Transport Act 2013 makes it an offence for a driver to have both a prescribed illicit drug in their system along with being above the prescribed concentration of alcohol.

If it is your first ‘major traffic offence’ within the past 5 years, the maximum penalty is 2 years imprisonment and/or a fine of up to $5,500.

The offence also comes with an ‘automatic’ period of disqualification from driving of 4 years, which can be reduced by a court to a minimum of 18 months.

A second or subsequent offence carries, again, up to 2 years imprisonment but the maximum fine is increased to $11,000. The automatic disqualification in these cases is 6 years, which can be reduced to a minimum of 3 years.

The second type of offence is for mid-range drink driving with the presence of a drug. A first offence carries a maximum of 18 months inside and/or a $3,300 fine. The automatic disqualification is 2 years, which can be reduced to 12 months.

A second or subsequent offence carries 2 years and/or a $6,600 fine. The automatic disqualification is 4 years, which can be reduced to 2 years.

The third tier of offence relates to those who have been convicted of one of the above offences within the previous five years, and are then caught driving with a novice range (0.00 and below 0.019 alcohol concentration for a learner, provisional or unlicensed driver), special range (0.02 and 0.049 for a learner, provisional or unlicensed driver) or low range (0.05 and 0.079 for a fully licensed driver) prescribed concentration of alcohol, with the presence of an illicit drug.

The maximum penalty in such cases is 18 months in gaol and/or a fine of $5,500. The automatic disqualification is 2 years, which can be reduced to 18 months.

A ‘mandatory interlock order’ will apply to any of these offences.

Getting a drink driving charge withdrawn or dismissed

It is important to be aware that in order to establish a drink driving offence, the prosecution must prove beyond a reasonable doubt that you were actually use were either driving with more than the prescribed amount of alcohol in your system or that you were ‘under the influence’.

A number of common defence strategies exist for having drink driving offences thrown out, these include:

• Challenging the breath test reading which said you were above the prescribed level of alcohol.
• Arguing the ‘two-hour’ rule applies.
• Arguing the ‘home safety’ rule applies.
• Establishing a defence of ‘honest and reasonable mistake’.

Challenging the alcohol reading

Challenging the test that suggested you were over the limit at the time of driving rather than later when tested is one of the most common ways of defending again a drink driving charge.

A person’s blood alcohol concentration increases for as much as an hour after their last drink. This means that if someone has a few quick drinks and then drives, their blood alcohol concentration may be less when driving than an hour later when they are tested at the police station.

Several factors are relevant when assessing a person’s alcohol concentration at the time of driving, including:

• age, sex and weight,
• when and what food was consumed,
• number and type of alcoholic drinks,
• time of first and last drink,
• time of ‘roadside breath test’, and
• time of ‘breath analysis’ at the police station.

If there are reasonable grounds to suspect that a breath test reading may be unreliable, an experienced traffic lawyer will contact a forensic pharmacologist to provide a report to that effect.

This report can be used to:

• Request a withdrawal of charge before a hearing.
• Request a reduction of the charge range (such as moving from ‘mid range’ to a ‘low range’ offence).
• To defend against the charge in a hearing.

The ‘two hour’ rule

Police are not permitted to breath test a person more than 2 hours after the person last drove.

If they do so, the evidence can be excluded by the court.

If it appears that police may have broken this rule, your criminal lawyer should notify them and request that the drink driving charge be withdrawn.

If police still proceed with the case, your lawyer can fight for the evidence to be excluded in court, and in certain cases for legal costs to be awarded in your favour.

The ‘home safely’ rule

Police are not permitted to require a driver to undergo a breath test on their own property.

If they do so, the evidence can be excluded by the court.

The defence of honest and reasonable mistake

The defence of ‘honest and reasonable mistake’ is available in ‘strict liability’ cases, which are those for which the prosecution does not need to prove a mental fault element such as negligence, recklessness or intent.

In these cases, the charge must be dismissed if the defendant establishes on the ‘balance of probabilities’ an honest belief on reasonable grounds that he or she was mistaken about a fact that is essential to establishing the offence.

In the context of drink driving, this means a driver must be found not guilty if it is established he or she was not aware of alcohol being in their system. Circumstances which might give risk to the defence of honest and reasonable mistake include:

• Driving the day after a night of drinking in circumstances an ordinary person would not believe would give a positive prescribed alcohol reading.
• If a person followed the general ‘rule of thumb’ of  waiting one hour for each standard drink consumed.
• In circumstances where a person’s drink has been spiked with alcohol by another.

Statutory exceptions for novice range drink driving offences

Under section 110(9) of the Act a person charged with a novice drink driving offence may have an exception if they can prove to the court’s satisfaction that, at the time the defendant engaged in the conduct that is alleged to have contravened the subsection, the presence in the defendant’s breath or blood of the novice range prescribed concentration of alcohol was not caused (in whole or in part) by any of the following:

•  the consumption of an alcoholic beverage (otherwise than for the purposes of religious observance);
• the consumption or use of any other substance (for example, food or medicine) for the purpose of consuming alcohol.

Less common formal defences to an offence of drink driving

Along with the statutory exceptions outlined above, a person may be able to challenge the offence in the basis of a formal defence under law.

This can include self-defence, duress or necessity.

Arrangements for financial hardship

If you do not wish to challenge the fine you’ve received but will struggle to pay the fine amount in time due to financial hardship, you can make a formal require to pay off the fine in instalments.

You may be able to pay by instalments if you:

• Receive a government benefit;
• Can pay the full amount within three months;
• Need longer than three months to pay;
• Are already paying off other fines.

It’s important to request to pay in instalments as soon as possible to avoid extra fees.

Going to court over an alcohol related driving offence?

If you are you going to court for drink driving, DUI or combined drink and drug driving,  call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first conference during which one of our experienced defence lawyers will assess your case, advise you of your options and the best way forward, and fight for the optimal outcome.