High Range Drink Driving (NSW)17 January 2024 in Traffic Law
The act of driving with a high range prescribed concentration of alcohol (PCA) as defined in section 110(5) of the Road Transport Act 2013 occurs when an individual operates a motor vehicle on a road or road-related area with a blood alcohol content (BAC) exceeding 0.15 in either their breath or blood.
What Are The Penalties?
High range drink driving is an extremely serious offence, and is dealt with harshly, particularly where a person has had prior drinking offences. A first high range drink driving offence carries a maximum fine of 30 penalty units and/or imprisonment for 18 months. A second or subsequent offence attracts a fine of up to 50 penalty units and/or two years imprisonment. The offence is also subject to a mandatory disqualification period and interlock order.
When determining the appropriate penalties for a high range drink driving offence, the court has regard to a ‘guideline judgement’ that offers guidance as to the range of appropriate sentences for this offence.
Mandatory Disqualification Periods
The Road Transport Amendment (Mandatory Alcohol Interlock Program) Act 2014 enforces mandatory disqualification periods for high range drink driving offenses, and these periods differ based on whether it is the offender’s initial or subsequent offense.
For first-time offenses, the compulsory disqualification period ranges from a minimum of six months to a maximum of nine months when an interlock order is concurrently issued. In cases where an interlock exemption order is granted, the automatic disqualification duration falls between 12 months and three years.
In contrast, for second or subsequent offenders, the obligatory disqualification period is set at a minimum of nine months, extending to a maximum of 12 months when an interlock order is part of the sentencing. In situations where an interlock exemption order is provided, an automatic disqualification period of five years is imposed if the offender committed another major offense within the last five years. However, if there is no record of a major offense within the preceding five years, the automatic disqualification period is reduced to three years. Importantly, these disqualification orders are automatic upon conviction, and the court lacks the authority to impose a lesser, greater, or conditional disqualification.
Mandatory Interlock Orders
High range drink driving offenses automatically trigger mandatory interlock orders. These orders encompass two sequential stages. Initially, they impose a disqualification period on the driver, ranging between the minimum and maximum periods stipulated for the offense. Subsequently, the driver is mandated to obtain and serve a period on an interlock license, during which an interlock device is installed in their vehicle.
Unless a driver qualifies for an interlock exemption order, the imposition of a mandatory interlock order is automatic upon conviction. To be eligible for an exemption from a mandatory interlock order, an individual must meet the criteria outlined in Section 212 of the Road Transport Act 2013. This provision mandates that the person either lacks access to a vehicle suitable for installing an interlock device or has a medically diagnosed condition preventing them from providing a sufficient breath sample, and the installation of the device is not reasonably practical.
In response to sentencing disparities for high range PCA offenses, the Attorney General devised a guideline judgment aimed at providing clarity to magistrates and judges for consistent sentencing. This guideline judgment defines the “ordinary offense” of high range drink driving, encompassing scenarios where the offender:
- Drove to circumvent inconvenience or without realising they were over the limit
- Exhibited a BAC reading during a random breath test
- Demonstrated a history of good character
- Maintained a traffic record with nil or minor offenses
- Had a suspended license upon detection of the offense
- Entered a guilty plea.
- Posed minimal or no risk of re-offending
- Faced significant inconvenience due to the loss of their license.
The guideline judgment further distinguishes matters by assessing whether they are aggravated or more severe than an “ordinary offense.” This evaluation considers additional aspects related to the offender’s ‘moral culpability,’ such as whether the offender:
- Recorded a BAC exceeding 0.15.
- Drove in an erratic or aggressive manner.
- Caused a collision between their vehicle and any other object.
- Engaged in competitive driving or exhibitionism.
- Posed a community risk, considering factors like driving distance and other elements.
- Endangered others through their driving behaviour.
Will I Receive A Conviction?
Yes, in almost all cases, a person who is found guilty of high range drink driving will receive a conviction for the offence. The guideline judgement states that it is rarely appropriate for a high range drink driving offence to be dealt with without proceeding to conviction.
Why BSM Lawyers?
It is important that you receive legal advice. High range drink driving offences are criminal offences which may result in a criminal record and possibly a gaol sentence. At Brander Smith McKnight, we have assisted many hundreds of clients with these charges. Our traffic offences lawyers will provide you with legal advice to ensure that you achieve the best possible outcome. This may include:
- Preparing you for court
- Obtaining character references
- Obtain evidence of hardship of licence disqualification, such as caring for a sick relative or the need for a licence for employment
- Obtaining medical or psychological reports
- Obtaining references from employers
- Completing traffic offender programs
Brander Smith McKnight criminal lawyers will carefully prepare submissions for sentencing, presenting the best possible legal case to achieve the best outcome. Our lawyers will appear in court for you, advocate strongly for you and handle the entire court process.
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.