Driving Under the Influence (DUI) is an offence under Section 112 of the Road Transport Act 2013 (NSW).
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You drove a motor vehicle, or occupied the driver seat and tried to put the vehicle in motion, or had a full licence and occupied the seat next to a learner driver, and
- You were affected by alcohol or any other drug at the time
A ‘drug’ is defined as:
- A prohibited drug under the Drug Misuse and Trafficking Act 1985
- A substance reasonably likely to deprive or impair an ordinary person’s normal mental or physical faculties, or
- Any other substance prescribed by statutory rules
The offence is charged as an alternative to driving with a low, mid or high range p.c.a. The offence is normally charged where police are not able or allowed to breath test you such as where they arrive more than 2 hours after you drove or where you are at your own premises.
A person cannot be charged with both driving with a p.c.a. and d.u.i. if it is your first major traffic offence in the past 5 years.
The maximum penalty for driving under the influence of alcohol is:
- 18 months in prison
- A 9 month licence disqualification which can be reduced to 6 months, followed by
- A 24 month period during which you must have an interlock device installed to your vehicle, and
- A fine of $3,300
Alternatively, the court can ‘exempt’ you from the interlock requirement and impose up to:
- 18 months in prison
- A 3 year licence disqualification which can be reduced to 12 months, and
- A fine of $3,300
The maximum penalty for driving under the influence of a drug (first offence) is:
- 18 months in prison
- A 3 year licence disqualification which can be reduced to 12 months, and
- A fine of $3,300
If it is your second or more major traffic offence in the past 5 years the maximum penalty for driving under the influence of alcohol is:
- 2 years in prison
- A 12 month licence disqualification which can be reduced to 9 months, Followed by
- A 48 month period during which you must have an interlock device installed to your vehicle, and
- A fine of $5,500
Alternatively, the court can ‘exempt’ you from the interlock requirement and impose up to:
- 2 years in prison
- A 5 year licence disqualification which can be reduced to 2 years, and
- A fine of $5,500
The maximum penalty for driving under the influence of drugs (second or more offence) is:
- 2 years in prison
- A 5 year licence disqualification which can be reduced to 2 years, and
- A fine of $5,500
However, 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
- A Conditional release order without a conviction
Defences to the charge include:
- Honest and reasonable mistake of fact
- Duress, and
- Necessity