Section 110 Road Transport Act 2013
Driving with the Presence of a Prescribed Concentration of Alcohol in Person’s Breath or Blood

Section 110 of the Road Transport Act 2013 is Presence of Prescribed Concentration of Alcohol in Person’s Breath or Blood and reads as follows:

Presence of prescribed concentration of alcohol in person’s breath or blood

(cf STM Act, ss 9, 10, 11 and 11A)

(1) Offence–novice range prescribed concentration of alcohol A novice driver must not, while there is present in the driver’s breath or blood the novice range prescribed concentration of alcohol:

(a) drive the motor vehicle, or

(b) occupy the driving seat of the motor vehicle and attempt to put the motor vehicle in motion.

Maximum penalty: 20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence).

(2) Offence–special range prescribed concentration of alcohol A person must not, while there is present in the person’s breath or blood the special range prescribed concentration of alcohol:

(a) if the person is a special category driver in respect of a motor vehicle–drive the motor vehicle, or

(b) if the person is a special category driver in respect of a motor vehicle–occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is a special category supervisor in respect of a motor vehicle and the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)–occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Maximum penalty: 20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence).

(3) Offence–low range prescribed concentration of alcohol A person must not, while there is present in the person’s breath or blood the low range prescribed concentration of alcohol:

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)–occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Maximum penalty: 20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence).

(4) Offence–middle range prescribed concentration of alcohol A person must not, while there is present in the person’s breath or blood the middle range prescribed concentration of alcohol:

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)–occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Maximum penalty: 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).

(5) Offence–high range prescribed concentration of alcohol A person must not, while there is present in the person’s breath or blood the high range prescribed concentration of alcohol:

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)–occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

The penalties

Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

Note : Division 1 of Part 7.4 provides for the disqualification of persons from holding driver licences for certain offences (including offences against this section).

(6) Alternative verdicts for lesser offences If the court on a prosecution of a person for an offence against any subsection of this section is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section of a less serious nature, the court may acquit the person of the offence with which the person is charged and find the person guilty of an offence against the other subsection. The person is liable to be punished accordingly.

(7) For the purposes of subsection (6):

(a) an offence against subsection (1), (2), (3) or (4) is of a less serious nature than an offence against subsection (5), and

(b) an offence against subsection (1), (2) or (3) is of a less serious nature than an offence against subsection (4), and

(c) an offence against subsection (1) or (2) is of a less serious nature than an offence against subsection (3), and

(d) an offence against subsection (1) is of a less serious nature than an offence against subsection (2).

(8) Presence of higher concentration of alcohol not defence It is not a defence to a prosecution for an offence against a subsection of this section if the defendant proves that, at the time the defendant engaged in the conduct that is alleged to have contravened the subsection, a greater concentration of alcohol was present in the defendant’s breath or blood than the prescribed concentration of alcohol referred to in the subsection.

(9) Defence for offence relating to novice range prescribed concentration of alcohol It is a defence to a prosecution for an offence against subsection (1) if the defendant proves 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:

(a) the consumption of an alcoholic beverage (otherwise than for the purposes of religious observance),

(b) the consumption or use of any other substance (for example, food or medicine) for the purpose of consuming alcohol.

Choosing the right legal team to defend your reputation and interests can be a difficult process.

However, it is always important to look at a firm’s experience and results when making this decision.

At Sydney Criminal Lawyers®, we have extensive experience defending and winning some of the most complex traffic matters – so you can rest assured that you are in safe hands.

Our traffic law specialists will take the time in every case to carefully scrutinise all the evidence in order to identify problems with the prosecution case at an early stage in the proceedings.

Where issues are found, our lawyers will write to the prosecution asking to have the charges dropped on this basis – often sparing our clients the considerable time and expense associated with defended hearings.

However, should your matter proceed to court, our senior lawyers will represent you and present a strong defence case to maximise your chances of being found ‘not guilty.’

Our senior lawyers are highly skilled advocates who have been recognised for their expert knowledge of the traffic law, as well as their ability to obtain excellent results in difficult cases.

We can assist you in avoiding the harsh penalties imposed by the law if you simply wish to plead guilty – in these cases, our experienced advocates can prepare and present compelling sentencing submissions which focus on any positive factors of your case.

For the best defence in your case, get the experts on your side today. Call us now on (02) 9261 8881 and book your FREE first conference with our traffic law specialists.

Our client is a successful businessman, environmentalist and family man.

He was charged by police with High Range Drink driving, having returned a positive breath analysis of .159.

We immediately contacted police to ask for copies of their body worn video, in car video, statements and any 000 calls or calls to police. 

We then separately wrote to police seeking substantial amendments to the police facts in return for a plea of guilty to the charge.

Our representations were successful, and key damaging statements were removed from the police Facts.

We arranged for our client to complete the Traffic Offenders course through two different providers, organised for him to undertake counselling through two different services, obtained a report from a Forensic Psychologist and organised seven character references.

At the sentencing hearing, we took the Magistrate through the Guideline Judgment on High Range PCA to demonstrate that, while rare, non conviction orders are still available for this offence, despite only 77 of the 7,903 sentences for this offence resolving without conviction in the previous 4 years.

Our client had an unenviable traffic record, but made significant efforts towards rehabilitation since the date of the offence. 

He demonstrated remorse and acceptance of responsibility through his character references and letter of apology to the court and, armed with this, we ultimately persuaded the presiding Magistrate to place our client on a Conditional Release Order for 12 months without a conviction being recorded against him. 

He walked away that day with no fine, no licence disqualification and no criminal record. 

Our client is a 37-year old woman who lives in Maroubra, in Sydney’s south.

She is employed as a doctor at a public hospital in Sydney.

She attended a Christmas party for her workplace, where she consumed a number of alcoholic drinks, before leaving and resting for a period of time in her car where she drank water until she believed she would be under the legal limit to drive home.

While on her way home, she was pulled over by police and registered an excessive breath alcohol limit during a roadside breath test.

She was arrested on that basis and conveyed to the police station, where she registered a reading in the upper mid-range.

She was then charged with driving with a middle-range prescribed concentration of alcohol (0.136).

She then attended our offices for a free first conference where her assigned lawyer provided her with advice regarding the offence, her options and the best way forward.

She instructed us that she wished to plead guilty to the offence, but was concerned about the impact of a criminal conviction on her present employment and career.

Her assigned lawyer provided her with advice and documents to assist in placing her in the best possible position for making submissions in court for a ‘non-conviction order’, such as a conditional release order without conviction.

To our client’s great credit, she provided us with her employment contract which contained the stipulation that her employment could be reviewed in the event of a criminal conviction. 

She also provided us with a letter of apology outlining that she took full responsibility for the offence and was genuinely remorseful. The letter also describes her concerns regarding her employment and career.

She additionally undertook a traffic offender program and provided us with character references from her long time friends as well as a colleague.

In the Local Court, the magistrate immediately made clear upon receiving the police ‘facts’ that he would not entertain a submission for a non-conviction order, given the blood alcohol reading, the prevalence of the offence in the community and the resulting need for general deterrence; that is, the need to send a message to others that such conduct will not be tolerated.

His Honour repeated that view upon reading the character references, letter of apology, employment contract and letter of completion from the traffic offender program.

Her lawyer made extensive submissions with a view to persuading the court that a non-conviction order could sensibly be made in this particular case given our client’s limited traffic history, the absence of previous convictions, her need for a driver licence, the fact she pleaded guilty at the first available opportunity, demonstrated genuine remorse, accepted responsibility, had contributed immensely to the community in extremely difficult circumstances and, importantly, the potential impact of a criminal conviction on both her and the general community – which had been facing a shortage in medical practitioners in the context of increased pressure on the public health system.

Despite all of those submissions, his Honour recorded a criminal conviction, imposed the minimum disqualification period and a fine.

We advised our client regarding a ‘severity appeal’ to the District Court – which is an appeal against the severity of the sentence imposed by the Local Court; including advice that, for all intents and purposes, such appeals cannot result in a more severe sentence as the District Court judge must warn about this in court, which gives the lawyer the opportunity to withdraw the appeal.

Our client instructed that she wished to lodge an appeal, and we did this for her immediately after court.

This meant the conviction and all other penalties were ‘stayed’; meaning not put in place until the outcome of the appeal.

In the District Court, the presiding judge was also initially reluctant to entertain an order without conviction given the blood alcohol reading, and the need for general deterrence given the prevalence of the offence.

Much persuasion was required, but after extensive submissions her Honour was ultimately persuaded not to record a criminal conviction against our client, but to place her on a 12 month ‘conditional release order’ without conviction.

This means our client does not receive a criminal record, driver licence disqualification or a fine and can move forward with her life, career and the vital work she undertakes for the community without impediment.

Our client is a 65 year old woman who is employed as a clinical researcher for a pharmaceutical company and resides in the South Sydney area of Kensington.

She attended a hotel in Kings Cross on an evening to meet up with her long-time friends, where she planned to have very little alcohol.

In the weeks leading up to the meeting, she had been undergoing back surgery for an injury sustained over a long period of involvement in the sport of rowing.

After consuming three glasses of white wine over several hours, she decided to call it a night.

She did not feel intoxicated and believed she was under the prescribed blood alcohol limit for a fully licensed driver.

She was therefore shocked to register a mid-range blood alcohol reading when subjected to a roadside breath test, which was confirmed when a breath analysis at the police station registered a reading of 0.096, which is also in the mid-range.

Our client has never previously been in trouble with the law, and immediately contacted our office and engaged our services.

Our defence team got to work immediately, guiding her on the preparation of subjective materials including character references and a letter of apology to the court, assisting her to enter a traffic offender program and obtaining medical documentation to support the assertion that it was extremely difficult for her to catch public transport given her condition.

To her great credit, our client obtained these materials in the lead-up to the court date, and her assigned senior lawyer prepared detailed submissions with a view to persuading the magistrate to treat her with lenience.

In court, her lawyer made detailed submissions regarding a range of matters including her specific circumstances, her need for a driver licence as well as the importance that she remain conviction-free.

In the result, the presiding magistrate was persuaded to give her the benefit of a good behaviour bond without recording a conviction against her name. This means she remains conviction-free, is not disqualified from driving and does not receive a fine.

Our client is a 42 year old criminal defence lawyer in Sydney.

He attended a function on Friday evening during which he consumed a beer and several glasses of wine during the course of the night.

He waited some time before getting into his vehicle and driving towards his home, before being pulled over for a random breath test and registering a reading of 0.114.

He was charged with driving with a middle range concentration of alcohol and contacted our office for representation on a guilty plea.

He wrote a letter of apology to the court and obtained character references from long time friends and an associate.

He also completed a traffic offender program.

Lengthy submissions were made in court regarding the potential effect of a criminal conviction and loss of licence, his prior food character, remorse, acceptance of responsibility, the steps taken to ensure there is no reoffending and the impact of a loss of licence, persuading the magistrate not to record a conviction against his name.

He was released on an 18 month conditional release order, which means there is no conviction, no fine and no loss of licence.

Our client is a 35-year old IT professional who had never previously been in trouble with the law.

He made a foolish decision to drive the short distance home after a work celebration, where he had been drinking alcohol.

Police followed him for about 20 seconds before he pulled into the driveway of his home. Police interpreted this as an attempt to evade detection and turned on their lights and sirens.

Police arrested and detained him on his property, then took him out to the front of his home to administer a breath test on a ‘road related area’.

Schedule 3 of the Road Transport Act prohibits police from subjecting a person to a breath test at on a property they own or occupy (this is known as the ‘home safely rule’), which gives rise to the inference that police were trying to circumvent the requirement by taking our client to the area in front of his property.

Our client blew a positive breath test and was conveyed to the police station, where he registered a high range reading for alcohol. He was then charged with high range drink driving.

Our client attended consultations with three criminal defence firms, who each advised him to plead guilty because he was in fact tested on a ‘road related area’ and his car was only partially parked on his own property. This is despite our client showing each of them CCTV footage from outside his home, which made it clear the ‘home safely rule’ had been breached.

Police produced statements to the effect that they ‘stopped’ our client on public land and that his car was not fully on his own property, which was inconsistent with the CCTV footage.

Our advice was that the breath test was clearly in contravention of the Road Transport Act, and was therefore illegal. The certificate in respect of the breath analysis was therefore inadmissible in court, and our client’s arrest and detention were also illegal.

Our client accepted our advice an elected to take the matter to a defended hearing.

At the hearing, both officers were extensively challenged about their statements and made significant concessions when confronted with the CCTV footage. It was made abundantly clear to the court during cross-examination that the officers had lied in their statements.

The court quickly found that the breath test was unlawful and dismissed the case against our client.

We then sought an order that police pay our client’s legal costs, which was granted.

We have advised our client in relation to a civil claim for false arrest and unlawful imprisonment.

In the meantime, our client remains conviction-free and is able to continue driving.

The Magistrate in Parramatta Local Court awarded our 32 year old client a 'section 10' for high range p.c.a. which means that he avoids a criminal conviction and gets his licence back.

Our client works as an Information Technology expert in a large Sydney-based company.

He lives with his wife and young daughter in Westmead.

The family attended an event in Parramatta where our client drank a number of alcoholic drinks throughout the course of the evening.

He stopped drinking between 10.30pm and 11pm, and only drank water after that.

He 'felt fine', although 'a little tired', and commenced driving home shortly after midnight.

He was pulled over for a roadside random breath test just before 12.20am.

He blew a positive reading, and was arrested and taken to the police station where he registered a reading of 0.170.

He was then charged with high range drink driving.

He saw a number of lawyers before seeing us.

He informed us that his job requires him to drive between various branches of his company at short notice to perform IT maintenance duties, and that his position may be reviewed if he has any criminal convictions.

We asked whether his employment contract might confirm this.

He produced the relevant parts of his contract which indeed confirmed both of those matters.

We advised him to undertake a Traffic Offender Program, to gather character references (including one from a work colleague) and to prepare a 'letter of apology' to the court describing his remorse and the impact that a conviction would have on his career and family.

We also referred him to see a counsellor.

We provided him and his 'referees' with detailed advice about how to prepare references.

We obtained a positive letter from the counsellor.

In court, it took a great deal of effort to finally convince the Magistrate to award our client a 'section 10', and to therefore allow him to keep his licence and avoid a conviction.

He was extremely satisfied with the result because he had previously been advised that it would be impossible to achieve a section 10 in his situation.

In Parramatta District Court, Sydney Criminal Lawyers® obtained a 'Section 10' ( no criminal record or licence disqualification) for a 38 year old Blacktown man who pleaded guilty to a 3rd drink driving charge was dealt with under ‘Section 10’ (i.e. without conviction, fine or disqualification).

The case was initially in Blacktown Local Court where the Presiding Magistrate had imposed a conviction, 12 months disqualification, an $800 fine and $76 court costs.

Sydney Criminal Lawyers® successfully appealed that decision and our client, who needs his licence for employment, can retain his job and continue to support his wife and two young children.

The Magistrate in Downing Centre Local Court allowed our 34 year old client from Mosman to avoid a conviction and a licence disqualification despite the fact that he was an ‘L plater’ and registered a blood alcohol reading of 0.07.

The charge arose when our client decided to drive home after having some drinks on a Friday night. He was stopped by police for a random breath test and blew a low range reading.

He had a learner licence at the time, but no ‘L’ plates were displayed.

Our lawyers assisted him with character references and a letter of apology to the court.

He also completed the Traffic Offender Program.

These materials were presented to the court on our client’s sentencing date, and lengthy submissions were made which ultimately persuaded the Magistrate to grant him a 12 month good behaviour bond under ‘section 10’, which means that he avoids a criminal record and licence disqualification.

This is despite this offence carrying an automatic disqualification period of 6 months.

Our client is a 46 year old Sales Executive living in Frenchs Forest, Sydney.

He was pulled over for a random breath test just after 9pm on a Friday night on Blackbutts Road, Frenchs Forest where he registered a blood alcohol reading of 0.100.

He told police that he had been drinking red wine at his home from 6pm to 9pm and was on his way to a friend's place. He was then charged with 'mid-range drink driving'.

There was nothing particularly remarkable about the facts of the case.

Our legal team ensured that he took the right steps in the lead-up to the court date; by helping him with his apology letter and character references, and referring him to counselling.

The matter came before Manly Local Court where two defendants who registered very similar readings (0.09 and 0.115) both received criminal convictions and licence disqualifications because, as the Magistrate put it, "the reading is too high". This was despite it being their first drink driving offence and both having a strong need for a driver licence.

Our client's case then came before the very same Magistrate, who was ultimately persuaded to allow our client to keep his licence and avoid a criminal conviction despite the reading.

It is an example of how careful preparation and persuasive presentation in court can make all the difference when it comes to the result in drink driving cases.

Our client is a 41 year old accountant in a multi-national company.

After finishing work on a Thursday night, he drove to a nearby pub where he consumed a meal and 1 schooner of beer.

He then drove towards his home, but just before arriving had a minor collision with another car.

While police were being called, our client walked a short distance to his home to get a jacket.

While there, he consumed half a bottle of red wine. He then returned to the scene where police breath tested him, finding him to be in the low range p.c.a. (0.066).

Police then charged him with (1) low range drink driving and (2) wilfully altering concentration of blood alcohol.

The fact that police pressed the second charge suggested that they accepted our client's explanation about drinking after the collision.

Our lawyers quickly capitalised on this by requesting withdrawal of both charges on the basis that, as our client's explanation was accepted, the first charge certainly could not be proved beyond reasonable doubt.

Police then withdrew both charges.