Drink Driving Penalties NSW: Throughout this article prepared by "Boorman Lawyers - Traffic Law" division we explore in great detail  the various penalties, fines and sentences that are available at the Courts disposal for pleas or findings of guilt for alcohol related traffic offences in New South Wales.

Drink Driving Penalties NSW

Throughout much of the Western world drink driving and other serious alcohol related traffic offences are among some of the most common criminal offences which appear before the Courts on a daily basis. Australia and the state of New South Wales is not immune from the common occurrence and as a result the Local Courts in New South Wales see more alcohol related traffic offences than nearly all other criminal offences.

These are prevalent offences usually carried out by people who are otherwise considered to be of good character and may even have limited to no criminal or traffic history. Yet whilst they are prevalent they are also extremely serious types of offence since they put innocent and unsuspecting peoples lives in danger.

We see in the news almost daily death, carnage and tragedy on our roads due to drink driving offences. The state of New South Wales has some of the harshest penalties and sentences in the Country for drink driving offences in an attempt to punish offenders and deter others from such dangerous behaviour.

As such we have compiled together a detailed outline in the table below of the various penalties and sentences at the Courts disposal for serious alcohol related traffic offences in New South Wales.

Drink Driving Penalties & Sentences in NSW

*Alcohol ONLY DUI offences subject to mandatory interlock orders

Novice Range DUI Penalties NSW (0.00-<0.020)

Special Range DUI Penalties NSW (0.020-<0.050)

Low Range DUI Penalties NSW (0.050-<0.080)

Middle Range DUI Penalties NSW (0.080-<0.150)

High Range DUI Penalties NSW (0.150>)

Driving Under the Influence (DUI) Penalties in NSW

These are other common drink driving offences NSW which are not categorized under a specified blood alcohol range.

Driving Under the Influence (DUI)

The specific law reads as follows from the Road Transport Act 2013:

“Section 112 – Use or attempted use of a vehicle under the influence of alcohol or any other drug:           

(1)        A person must not, while under the influence of alcohol or any other drug:                       

(a)        drive a vehicle, or                       

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

(c)        being the holder of a driver licence (other than a provisional licence or a learner licence), occupy the seat in or on a motor vehicle next to a holder of a learner licence who is driving the motor vehicle.           

(2)        If a person is charged with an offence under subsection (1):                       

(a)        the information may allege the person was under the influence of more than one drug and is not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the information, and                       

(b)        the offence is proved if the court is satisfied beyond reasonable doubt that the defendant was under the influence of:                                   

(i)         a drug described in the information, or                                   

(ii)        a combination of drugs any one or more of which was or were described in the information.”

The offence of driving under the influence differs from an offence of driving with PCA because it is generally proven through the observations of police or witnesses. Other surrounding circumstances and factors are taken in to account such as the person’s breath smelling of intoxicating alcohol, glazed or red eyes, slurred speech, swaying or unsteady on feet, or being involved in car accident.When the police lack the evidence of being able to produce evidence of a blood alcohol concentration result they will often rely upon this section of the law to charge a person for driving a motor vehicle whilst being intoxicated by alcohol. Instead of providing scientific evidence (breath analysis results) police will rely upon police and witness observations to try and prove their case against you in court.

Refuse Breath Test in NSW

The specific law reads as follows:           

“Section 16 (1) A person must not, when required to do so by a police officer under this Part, refuse or fail: 

(a) to submit to a breath test under Division 2 in accordance with the officer’s directions”

The offence of refusing a breath test comes about whether the driver of a motor vehicle refuses or fails to provide a sample of breath to the police when directed to do so. Generally, this offence will occur when a driver refuses or fails a road side breath test which occurs prior to police conducting a breath analysis.

Refuse Breath Analysis in NSW

The specific law reads as follows:           

“Section 16 (1) A person must not, when required to do so by a police officer under this Part, refuse or fail: 

(b) to submit to a breath analysis under Division 2 in accordance with the officer’s directions”

This offence is more serious that refusing a breath test. It is committed by a person who is the driver of a motor vehicle and refuses or fails to provide a sufficient breath sample by way of a breath analysis. Generally, you will be offered 3 attempts to provide a sufficient sample and failure or refusal will result in this charge being issued. You are required to follow police directions to provide such a sample and it cannot be used as a defence to say that you wish to first seek legal advice.

Wilfully Alter Blood Concentration in NSW

The specific law reads as follows:

“(1) A person (other than a secondary participant in an accident) must not wilfully do anything:

(a) to alter the concentration of alcohol in the person’s breath or blood between the time of the event referred to in clause 3 (1) (a), (b) or (c) in respect of which the person has been required by a police officer to submit to a breath test under Division 2 and the time when the person submits to that test, or

(b) to alter the concentration of alcohol in the person’s breath or blood between the time of the event referred to in clause 3 (1) (a), (b) or (c) in respect of which the person has been required by a police officer to submit to a breath test under Division 2 and the time when the person submits to a breath analysis under that Division, or

(e) in the case of an accident involving the person-to alter the concentration of alcohol in the person’s blood (except at the direction or under the supervision of an appropriate health professional) between the time of the accident concerned and the taking of a sample of the person’s blood in accordance with Division 4.”

When a person purposely consumes a substance in order to alter the level of blood alcohol in their breath or blood between the time of the event of driving and the time in which they are tested. For example a person would be charged under this law if they were involved in a car crash and during the time they were waiting for the police to arrive they wilfully consumed more alcohol.It is a law which has been put in place to prevent people from saying that at the time of the car crash they were sober and decided to consume alcohol after the crash when they were driving the vehicle.

Second or Subsequent Major Traffic Offence 

You need to understand that if you have been convicted of a “Major Offence” within the last 5 years then this means that the Court must deal with your current drink driving matter in a specific way where the penalties and sentences are dramatically increased.

The increase in penalties is mandatory according to the law and Magistrates must act in accordance with these laws. In other words the Magistrate does not have the discretion to not apply the increased penalties and sentences as outlined under the law.

As mentioned above your penalties and sentences for your existing charge will be increase if you have a prior Major Offence on your record within the past 5 years.

So what is a Major Offence which activates these harsher penalties.

Well according to the Road Traffic Act 2013 NSW the definition of a “Major Offence” is:

“major offence” means any of the following crimes or offences:

(a) an offence by a person (the “offender” ), in respect of the death of or bodily harm to another person caused by or arising out of the use of a motor vehicle driven by the offender at the time of the occurrence out of which the death of or harm to the other person arose, for which the offender is convicted of:

(i) the crime of murder or manslaughter, or

(ii) an offence against section 33, 35, 53 or 54 or any other provision of the Crimes Act 1900 ,

(b) an offence against section 51A, 51B or 52AB of the Crimes Act 1900 ,

(c) an offence against section 110 (1), (2), (3) (a) or (b), (4) (a) or (b) or (5) (a) or (b),

(d) an offence against section 111, 112 (1) (a) or (b), 117 (2), 118 or 146,

(e) an offence against section 117 (1) of driving a motor vehicle negligently (being driving occasioning death or grievous bodily harm),

(f) an offence against clause 16 (1) (b), 17 or 18 of Schedule 3,

(g) an offence of aiding, abetting, counselling or procuring the commission of, or being an accessory before the fact to, any crime or offence referred to in paragraph (a)-(f),

(h) any other crime or offence that, at the time it was committed, was a major offence for the purposes of this Act, the Road Transport (General) Act 2005 , the Road Transport (General) Act 1999 or the Traffic Act 1909 .

In common terms this means that the following offences will be considered as “major offences“:

• Novice Range PCA
• Special Range PCA
• Low Range PCA
• Middle Range PCA
• High Range PCA
• Drive with presence of drugs in oral fluid, blood or urine
• Driving Under Influence of Drugs or Alcohol
• Negligent Driving
• Dangerous, Furious or Reckless Driving
• Drag Racing
• Menacing Driving
• Refuse Breath Analysis
• Failing to stop and assist after impact causing injury
• Offences-refusal or failure to provide samples or preventing sample taking
• Offences-wilful introduction or alteration of concentration or amount of alcohol or other drugs

Other offences may be considered “Major Offences” however these are the main offences. As previously mentioned if you have been convicted of a major offence within the past 5 years then you must expect increased penalties and sentences. Please see the table below for a summary of the penalties and sentences that exist for second offences within a 5 years period.   

Drink Driving Penalties Summarised

As you can see from what we have discussed above, there are many things to know and understand when you go through the Court system in New South Wales and dealing with a drink driving charge or other serious alcohol related traffic offence.

It has to be understood that drink driving offences are among the most common offences brought before the Courts each day and for this reason the Courts are quick to hand down harsh penalties which can throw your how life into chaos if you are unable to be mobile and operate a motor vehicle. Therefore, you should either engage a Specialist Sydney DUI Lawyer to assist you through this complex process and to allow you the chance to get the best outcome possible.

   BRISBANE • GOLD COAST • SYDNEY