Drink Driving Lawyers in Sydney and NSW

The maximum penalties that apply to drink driving offences in New South Wales are:

The Judicial Commission of New South Wales publishes statistics on the penalties imposed for specific offences in our state.

And while it does not record the lengths of driver disqualifications imposed for traffic offences, or specify whether it is the driver’s first or subsequent major traffic offence within 5 years, the Commission does provide a breakdown of other penalties imposed.

According to the Commission, the breakdown for those who plead or are found guilty of drink driving without additional offences (eg negligent or dangerous driving) is as follows:

Novice range drink driving

Special range drink driving

Low range drink driving

Mid range drink driving

High range drink driving

There are several procedural hurdles the prosecution is required to overcome to prove a drink driving charge to the required standard, which is beyond a reasonable doubt.

These requirements are additional to proving that the person was driving a motor vehicle at the time of the alleged offence and had a certain blood alcohol concentration.

In addition to this, there are a number of legal defences that apply to drink driving charges.

In the event any of these defences is raised, the onus then shifts to the prosecution to prove that the defence does not apply.

Here is an outline of the ways to defeat an allegation of drink driving:

Unsafe Reading

The most common way to overcome a charge of drink driving is to press the prosecution for proof that the driver’s blood alcohol concentration could have been lower at the time of driving than later when analysed by police.

Studies make it clear that a person’s blood alcohol concentration rises for between 30 minutes and 1 hour after their last alcoholic drink.

This means, for example, that if someone has a few ‘quick drinks’ and gets ‘behind the wheel’ their blood alcohol concentration may be significantly lower when driving than 30 minutes or an hour later when tested on the ‘breath analysis’ machine.

Several factors can determine whether a driver’s reading when driving was likely to be lower than when tested.

These factors include:

• 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’.

We can assess whether your blood alcohol concentration may have been lower at the time of driving than later when analysed.

If this is a possibility, we can obtain a ‘pharmacological report’ that can be used to:

• request withdrawal of the charge;
• request reduction of the charge-type, eg from ‘mid range PCA’ to ‘low range PCA’, and/or
• to defend the charge at 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 on the basis it was unlawfully obtained.

If it appears that police may have broken this rule, we will demand that the charge be withdrawn on that basis.

If police nevertheless proceed with the case, we will fight to have the evidence excluded and costs awarded in your favour.

The ‘Home Safely’ Rule

Similarly, it is illegal for police to require a person to undergo a breath test on his or her own property.

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

In addition to these requirements placed on the prosecution, there are also several legal defence that may be available to charges of drink driving.

These include:

Honest and Reasonable Mistake

This defence is available to persons who ‘honestly and reasonably’ believed they were under the limit when driving.

It is often easy to prove that a person’s mistake was ‘honest’.

However, it is becoming more and more difficult to prove that it was ‘reasonable’.

This is because there is so much advertising about not ‘drinking and driving’ at all.

However, there are a range of circumstances where the defence is available, including where a person’s drink was ‘spiked’ and they believed they were fatigued rather than affected by alcohol, and limited situations where a significant amount of time has elapsed since the last drink, such as where a person drove ‘the afternoon after’ drinking.

Duress

Duress is essentially where you drove due to being threatened with very serious harm, in circumstances where you have very little choice than to do otherwise.

If there is evidence of this defence, the onus then shifts to the prosecution to disprove this defence beyond a reasonable doubt.

Necessity

Necessity is where you drove to avoid very serious consequences to you or another person you were bound to protect.

If there is evidence of this defence, the onus then shifts to the prosecution to disprove this defence beyond a reasonable doubt.

Pleading guilty to drink driving

If you wish to plead guilty to a drink driving charge, there are a number of ways a good lawyer can reduce the seriousness of the charge itself as well as help you demonstrate to the magistrate that you have accepted responsibility for the offence and, where appropriate, taken steps to address any underlying issues.

These steps can result in a more lenient penalty than you may otherwise have achieved – including, again where appropriate, a ‘non-conviction order’ such as a section 10 dismissal or a conditional release order without a conviction.

A non-conviction order is where a person is guilty of an offence but the magistrate does not record a criminal conviction against his or her name, which means you will not have a criminal record, a driver licence disqualification or a fine.

Unsafe reading

Where you blood alcohol reading is on or just over a certain range – such as mid range of 0.80 or high range of 0.150 – your lawyer may be able to obtain a pharmacological report to establish that your reading was actually lower at the time of driving than later when your breath was analysed at the police station.

How does this make sense? Studies show that a person’s blood alcohol increases for 30 minutes to an hour after their last drink, especially where those drinks are consumed within a short period of time.

This means, for example, that a person who was pulled over a short time after their last drink but was only analysed at the police station some time thereafter may have been below the analysed concentration when they had actually been driving.

An experienced drink driving lawyer will be able to assess during your first conference whether this may have been the case and, if so, obtain a pharmacological report which can then be used to pressure police to reduce the reading – which, in turn, can have an enormous impact on the outcome.

Traffic offender program

Completing a traffic offender program can demonstrate your acceptance of responsibility for your conduct and help to convince the magistrate you are unlikely to reoffend.

This can result in a more lenient penalty by giving the court confidence regarding your character, contrition and unlikelihood of reoffending.

Your lawyer can refer you to a program that is convenient to you, both in terms of location and duration/intensity.

Counselling / psychological report

If an underlying mental health issue may have been a contributing factor to your decision to drive, seeing and obtaining a report from a mental health professional may show the magistrate you have taken steps to address that issue and are therefore less likely to re-offend.

Where there is a significant nexus between your decision to drive and your condition, it may be advisable to make an application to have the matter entirely dismissed on that basis. This is known as a ‘section 14 application’ (previously known as a ‘section 32 application’) and, if successful, will mean there is no formal finding of guilt against you, no criminal record, no disqualification and no fine.

Your lawyer can refer you to the mental health professional who is most suitable to your situation.

Letter of apology to the court

Writing a letter of apology to the court can demonstrate your acceptance of responsibility and remorse, as well as explain the background to your conduct, your steps to make amends and the impact of a criminal conviction and/or licence disqualification upon you – all in your own words.

https://www.sydneycriminallawyers.com.au/criminal/resources/letters-of-apology/

We have a letter of apology guide to assist you in preparing the document, and your lawyer will go through the document to ensure everything is suitable to hand-up in court.

Character references

Obtaining up to three character references from those who are important in your life can demonstrate to the court that not only have you personally accepted responsibility, but have gone so far as to admit your conduct to those you respect and who may have an influence over you – such as colleagues, employers and long-time friends and associates.

This can persuade the court you are genuinely remorseful and thereby help lead to a positive outcome in your case.

We have a character reference guide to assist your ‘referees’ in the preparation of the documents, and your lawyer can check over them to ensure they are appropriate to be used in court.

Armed with this material, as well as your detailed ‘instructions’ (information about you as well as the background to the incident, the incident itself, your reasons for driving at the time, your subsequent actions and the potential impact of a heavy penalty) your lawyer’s job will be to persuade the magistrate in court to deal with you as leniently as possible in the circumstances.

An experienced drink driving lawyer will have done this hundreds of times, and will tailor his or her ‘submissions’ (what is said in court) to the particular set of circumstances as well as the magistrate he or she is before, with a view to achieving the optimal outcome in your case.

For your peace of mind, we offer a free first conference as well as fixed fees for drink driving cases throughout New South Wales.

We also guarantee you will be represented by a specialist defence lawyer who is vastly experienced in drink driving cases.

On 8th September 2004, the NSW Court of Criminal Appeal – which is the highest criminal court in our state – handed-down a ‘guideline judgement’ on high range drink driving.

A ‘guideline judgement’ is a set of rules that courts should generally follow when sentencing a person for a particular offence.

The ‘guideline’ for ‘high range drink driving’ is as follows:

The Guideline

(1) In an ‘ordinary case’ of an offence of high range PCA:

• a non conviction order such as a section 10 dismissal or conditional release order will rarely be appropriate,
• a conviction cannot be avoided only because the offender has attended, or will attend, a driver education or awareness course,
• the automatic disqualification will be appropriate unless there is a good reason to reduce the period of disqualification.

A ‘good reason’ to reduce the automatic period may include:

• the nature of the offender’s employment,
• the absence of any viable alternative transport, and
• sickness or infirmity of the offender or another person.

(2) In an ordinary case of a second or subsequent high range PCA offence:

• a good behaviour bond under ‘section 9’ (with a conviction) will rarely be enough punishment,
• a non conviction order such as a section 10 dismissal or conditional release order will very rarely be appropriate, and
• where the prior offence was a high range PCA, any sentence less severe than a community service order will generally be enough punishment.

(3) The ‘moral culpability’ of a high range PCA offender is increased by:

• the degree of intoxication above 0.15,
• erratic or aggressive driving,
• a collision,
• competitive driving or showing off,
• the length of the journey,
• the number of persons put at risk by the driving.

(4) In a case where the moral culpability of a high range PCA offender is increased:

• an order under sections 9 or a non conviction order would very rarely be appropriate,
• where more than one aggravating factor is present to a significant degree, a sentence less than prison of some kind, including a suspended sentence, would generally be inappropriate.

(5) In a case where the moral culpability of the offender of a second or subsequent high range PCA is increased:

• a sentence of any less severity than imprisonment of some kind would generally be inappropriate,
• where more than one aggravating factor is present to a significant degree or where the prior offence is a high range PCA, a sentence less severe than full time imprisonment would generally be inappropriate.

What is an ‘Ordinary Case’?

An ‘ordinary’ high range drink driving case is where:

• there was a random breath test,
• the offender has prior good character,
• the offender has nil, or a minor, traffic record,
• the offender’s licence was suspended on detection,
• the offender pleaded guilty,
• there is little or no risk of re-offending,
• the offender would be significantly inconvenienced by a loss of licence.

The guideline makes it clear that the following factors may justify leniency:

• strong need for a licence,
• completing a traffic offender program,
• driving that occurred due to an emergency or safety or another unforeseen reason, rather than for convenience.