DRINK DRIVING

The offence of Drink Driving is created under the Road Transport (Safety & Traffic Management) Act 1999 "The Act". It is an offence to do either of the following, while there is present in a persons blood either the "low" (more than 0.05 but less than 0.08), "mid" (more than 0.08 but less than 0.15), or "high" (more than 0.15) range prescribed concentration of alcohol:

• Drive a motor vehicle.
• Occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion.
• Be the holder of a driver's licence and occupy the seat in a motor vehicle next to holder of a learner licence, who is driving the vehicle.

PENALTIES

Special Range PCA & Low Range PCA (First Offence):

• $1,100 monetary penalty;
• Automatic 6 month disqualification, minimum 3 month.

Special Range PCA & Low Range PCA (Second or Subsequent Offence):

• $2,200 monetary penalty;
• Automatic 12 months, minimum 6 months.

Middle Range PCA (First Offence):

• $2,200.00 / 9 months imprisonment;
• Automatic 12 months, minimum 6 months.

Middle Range PCA (Second or Subsequent Offence):

• $3,300.00 / 12 months imprisonment;
• Automatic 3 years, minimum 12 months.

High Range PCA (First Offence):

• $3,300.00 18 months imprisonment;
• Automatic 3 years, minimum 12 months.

High Range PCA (Second or Subsequent Offence):

• $5,500.00 / 2 years imprisonment;
• Automatic 5 years, minimum 2 years.

It is also an offence to drive under the influence of alcohol or under the influence of a drug being a prohibited drug or drug for the purposes of The Act. For the offence of Driving Under the Influence of Alcohol the Police do not need to prove that a person was driving with any of the prescribed concentrations of alcohol in their blood.

For the purposes of penalty a second or subsequent offence is an offence for which a person has been convicted within 5 years of the most recent offence. 

DANGEROUS DRIVING

What is Dangerous Driving?

The Road Transport (Safety & Traffic Management) Act 1999 creates an offence of driving on a road or road related area, negligently, furiously, recklessly or at a speed or in a manner dangerous to the public. 

Penalties

Where a person driving negligently causes the death of another person the penalty for a first offence is $3,300.00 fine and maximum 18 months gaol and in the case, of second or subsequent offence a maximum fine of $5,500.00 and imprisonment for a maximum of 2 years.

For negligent driving occasioning grievous bodily harm the penalty for a first offence is a maximum fine of $2,200.00 and imprisonment for 9 months and for a second offence, a maximum fine of $3,300.00 and imprisonment for 12 months.

A second or subsequent offence means an offence within 5 years of the date of a conviction for the same offence, or a "major offence" (such as drink driving). 

Dangerous Driving Under the Crimes Act

The Road Transport (Safety & Traffic Management) Act 1999 offence of driving at a speed or in a manner dangerous refers to driving being dangerous "to the public". The Crimes Act 1900 (NSW) creates a number of offences of dangerous driving where a specific injury is caused to another person. The following offences are created:

• Dangerous Driving Occasioning Death; Where a vehicle driven by the person is involved in an impact occasioning death of another person and the driver was, at the time of the impact, driving a vehicle.
• Under the influence of intoxicating liquor, or of a drug; or
• At a speed dangerous to another person or persons; or
• In a manner dangerous to another person or persons; The maximum penalty for the offence is 10 years imprisonment.

Dangerous Driving Occasioning Grievous Bodily Harm. This offence is committed where the same conditions exist as described in relation to Dangerous Driving Occasioning Death, but where the injury suffered by the other person is Grievous Bodily Harm. Grievous Bodily Harm means any really serious bodily injury. 

DRINK DRIVING

Police Powers with Respect to Breath Test & Breath Analysis: 

Road Side Breath Tests

Any person driving a motor vehicle on a road must stop and provide a breath sample to Police when directed to do so. The Police do not have to have any suspicion that a persons is under the influence of drugs or alcohol when requiring a person to give a breath sample. It is an offence to refuse to submit to a direction from a Police Officer to give a breath sample. 

Breath analysis at Police station

Once a breath sample has been obtained and the result indicates there may be present in the person's blood more than 0.05 grams of alcohol in 100 millilitres of blood (or in the case of Special Category Driver more than 0.02 grams), the Police may arrest the person and use such force as necessary to take the person to a Police station to carry out a breath analysis. It is an offence to refuse to submit to a breath analysis at a Police station.

The breath analysis reading is what provides the basis for a person to be charged for an offence under any of the PCA categories. The penalties for refusing to submit to a breath analysis are the same as the penalties for driving with a high range PCA. 

Tests within 2 hours and "usual place of abode"

For the results of the breath analysis to be used as evidence of the relevant reading, the analysis must generally be conducted within 2 hours of an act of driving.

The Police cannot require a person to undergo a breath test or submit to a breath analysis if the person is at "usual place of abode". 

What should you do if arrested after a breath test?

You should accompany the Police back to the Police Station where you will be asked to submit to a breath analysis. The reading shows any of the prescribed concentration of alcohol categories, then you will be charged with a PCA offence. 

Bail & Court

You will ordinarily be released from the Police Station on unconditional bail. The Police, however, may request that you sign a Bail Undertaking with conditions prior to your release. You will be notified of the day when your matter is first before the Local Court and you must attend the court on that day. (If you are issued with a Field Court Attendance Notice, Summons or Court Attendance Notice, you need not attend court personally, as long as you have a legal representative appearing on your behalf). 

Suspension of Licence

For an offence of Mid Range PCA and High Range PCA your licence will be automatically suspended at the time that you are charged with the offence. If you are subsequently found guilty (open it is most likely that you will plead guilty) and are convicted of the offence, then the Magistrate is able to back-date the disqualification period imposed to the date of the suspension of your licence (that is the day the offence was committed). 

Matters taken into account on Sentence, and Penalties Imposed

The court will look at your Traffic Record to determine if you have any prior offences of a similar nature. Other offences, such as, Negligent of Dangerous Driving or Infringements such as speeding offences are also taken into account and can influence the length of the disqualification period imposed. Only in very rare circumstances will the court exercise its discretion not to record a conviction for the offence. For example, this may occur where a person has been driving for say 20 or 30 years with perhaps only 1 or 2 minor infringements and no previous similar offences.

For repeat offenders the court will consider the imposition of a custodial sentence. If a person comes before the court a second or third offence, particularly, within a 5 year period, then the court will seriously consider imposing a gaol sentence, but will look a non full time custodial options such as Community Service or Periodic Detention.

DANGEROUS DRIVING

Arrest and bail

Arrest for a Dangerous Driving offence usually takes place after an accident has occurred, but will sometimes be delayed while the Police conduct a thorough investigation.

If you are arrested because the Police wish to talk to you about an alleged driving offence, particularly as a result of an accident where a person was injured or killed, then you should seek urgent legal advice before making any statements to the Police. You are required to give particulars of your knowledge of the identity of drivers of motor vehicles involved in an accident and of the registration details of those motor vehicles. If the Police wish to conduct a record of interview, however, you are able to exercise your right to remain silent and it is best only to agree to answer questions in a record of interview once you have sought legal advice. Anything you say during the record of interview can be used in evidence in later court proceedings.

Bail is usually granted for Dangerous Driving offences, be it at the Police Station or following refusal of Bail at the Police Station, by a Magistrate at Court. 

Court proceedings

The court is to have regard to all of the circumstances of the case when determining if an offence has been committed, all of the circumstances include:

Nature, condition and use of the road or road related area where the offence is alleged to have occurred.

The amount of traffic on the road or road related area at the time of the offence, or which might be reasonably expected to be there at the time of the offence.

For an offence where death is not occasioned and the person is charged after 1 September, 1995, the offence is to be dealt with by a Magistrate in the Local Court, unless the Prosecutor or the person charged elect to have the matter heard by the District Court. 

Matters taken into account by the Court on Sentencing

While the court will take into account the offender's subjective circumstances, such as their prior good character and lack of criminal record (if applicable) employment, family, the court also gives the required weight to the "objective seriousness" of the offence.

In the Local Court the maximum term of imprisonment which can be applied for a single offence is 18 months.

Where the offence is aggravated, the court has held that a gaol term of less than 3 years where death is occasioned and less than 2 years where grievous bodily harm is occasioned should be exceptional. 

FURTHER INFORMATION

This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708. 

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.