Dealing With A Drink Driving Charge In NSW

Dealing With A Drink Driving Charge In NSW

Dealing With A Drink Driving Charge In NSW

In NSW, a drink driving charge is a serious offense that can have severe consequences. The article provides guidance on how to deal with a drink driving charge, including understanding the different types of offenses, the potential penalties, and the legal options available to defend against the charge.

Find out more about drink driving charges in New South Wales, what options you have and how to deal effectively with the process.

Receiving a charge for drink driving is a serious offence, no matter where you live in Australia. However, when dealing with a DUI charge in NSW, you can find yourself receiving some of the harshest penalties in the country. Let’s look at the penalties involved, explanation of the process, legal options and defences available.

What Is A Drink Driving Offence?

There is a legal limit to how much alcohol you can have in your blood when driving. The police have breath analysis machines (alcoholmeters) that they use to determine your “BAC”, blood alcohol concentration reading. If you choose to drive a motor vehicle after consuming alcohol, you put yourself at risk of being prosecuted by the police. Drink driving is a criminal offence, and if convicted, you could have your licence suspended, be charged a fine, appear in court, or even receive a prison sentence. The penalties for drink driving offences in New South Wales changed in 2019. When caught, you can now have your licence suspended immediately. 

The penalties and sentences vary depending on the BAC level and previous traffic offences. It can affect the minimum and maximum licence suspension periods and fines. The category a person belongs to will differ depending on the type of licence they hold. For example, P1 or P2 drivers have a lower limit than full license holders.

If a person refuses to give a breath analysis or blood sample, they risk being charged, as well as displaying dangerous driving involving alcohol.

If your roadside test is over the limit, you will be arrested, taken to the police station for an evidentiary analysis of your breath. You will be fingerprinted, have your photo taken and may need to go to court.

What Is A PCA Charge?

Drink driving charges are more commonly known as “DUI”, driving under the influence. To prove that you have been driving under the influence of alcohol, police use PCA (prescribed concentration of alcohol) as a scientific way to measure precisely how much alcohol is in your body. Penalties under criminal law exist based on the PCA range. Police will use your blood alcohol concentration to prove a drink driving charge. Symptoms of alcohol intoxication can vary from person to person, and a PCA enables police to use evidence rather than visual symptoms alone.

Driving under the influence, DUI is different to PCA offences. DUI does not require police to prove that you were affected by alcohol or drugs. DUI charges are based on police observations about your driving or actions. A criminal lawyer can help make sure that you receive the best possible outcome based on your circumstances.

In New South Wales, there are five categories for PCA ( prescribed concentration of alcohol) drink driving offences:

Novice, Low Or Special Range

Novice range (0.00 – 0.019 for a Learner, P1 or P2 driver)

Special range (0.02 – 0.049 for a Learner, P1 or P2 driver, or a bus or taxi driver)

Low range (0.05 – 0.079)

Middle Range

Mid range (0.08 – 0.149)

High Range

High range (0.15 and higher)

What Are The Penalties For Drink Driving In New South Wales?

Drink driving offences are some of the most common criminal offences that go before a court daily. In every case, the penalty for a second or subsequent offence is harsher.

Novice, Low or Special Range Drink Driving

Since May 2019 a person can be issued on the spot fines of $561.

First Offence (within a period of 5 years)

  • A maximum fine of $2200 or an on the spot fine
  • Suspension of drivers licence for three months

Second Or Subsequent Offence

  • A maximum fine of $3300
  • A minimum disqualification period of 1-3 months followed by installation of an interlock device for a minimum of 12 months

Mid Range Drink Driving

Middle range drink driving is one of the most common charges before the courts in New South Wales.

First Offence (within a 5 year period)

  • A maximum fine of $2200
  • Up to 9 months in prison
  • Automatic disqualification of drivers licence for 3-6 months followed by installation of an interlock for a minimum of 12 months

Second Or Subsequent Offence

  • A maximum fine of $3300
  • Up to 12 months in prison
  • Automatic licence disqualification for 6-9 months followed by installation of an interlock device for a minimum of 2 years

High Range Drink Driving

With a BAC level over 0.15, you are 25 times more likely to be involved in a crash within this high-level range.

Driving with this level of intoxication will attract heavy penalties and a prison sentence, even for a first traffic offence.

First Offence (within a 5 year period)

  • A maximum fine of $3300
  • Up to 18 months in prison
  • Automatic suspension of drivers licence for 6-9 months followed by installing an interlock to your vehicle for two years.

Alternatively, the court order can exempt you from the interlock device and impose maximum penalties.

Exemptions are possible if you can prove to the court that you don’t have access to a vehicle with which an interlock can be installed or have a medical condition that prevents you from using an interlock. If the interlock order would cause severe hardship and an exemption is a more appropriate course of action. Seeking the advice of criminal lawyers who specialise in traffic law would be advantageous.

Generally, an exemption order would include completion of the sober driver program as a mandatory requirement to reinstating your licence. Which is a therapeutic group program to help you understand the consequences of drink driving, help provide strategies and develop skills to help prevent re-offending and promote safer driving.

  • A maximum fine of $3300
  • Up to 18 months in prison
  • Automatic disqualification of drivers licence for 3 years, with the possibility to reduce to 12 months

Second or Subsequent Offence

  • A fine of $5500
  • Up to 2 years in prison
  • Automatic disqualification of drivers licence for 9-12 months, followed by installation of interlock device installed to your vehicle for four years Alternatively, the local court could exempt you from the interlock program and impose maximum penalties.
  • A fine of $5500
  • Up to 2 years in prison
  • Automatic disqualification of drivers licence for 2-5 years

If you are convicted of three or more major traffic crimes within five years, you risk an additional disqualification period of up to 5 years.

Refuse To Provide A Breath Test Sample

First Offence

  • A fine of $1100
  • A minimum suspension of license 6-9 months, followed by installation of an interlock for two years

Second or Subsequent Offence

  • A fine of $5500
  • Up to two years in prison
  • A minimum disqualification of license 9-12 months followed by installation of an interlock device for four years

What Is An Interlock Order?

There are particular drink driving offences in New South Wales where the NSW courts must make interlock orders.

An interlock device will be expertly fitted to your vehicle. To start the car, you blow into it to register a zero BAC result. It could ask you to repeat the process at random times to continue driving. You will not be allowed to drive any other vehicle during this time. The device keeps a record of any time you record a level over zero that police can access and proceed to charge you with  subsequent offences.

You must pay for all costs associated with the installation and monitoring of the interlock device, which are estimated to be around $2200 per year. Concession rates may apply if you hold a valid concession card. If you are in severe financial hardship, an assessment can be made, and you may get a discount.

The court order varies depending on the offence and can last a minimum of 12 months up to 48 months.

Who Is Required To Participate In The Interlock Program

Any driver convicted of repeat, severe drink driving, high range, or mid-range drink driving offences in NSW must have an interlock installed per their court order.

From June 2021, it will also apply to any combined drink and drug driving offence.

Benefits Of The Interlock Program

If you comply with the requirements, you can resume driving sooner, which means a shorter disqualification period.

An interlock can help offenders separate drinking from driving and help reduce the chances of re-offending, which can be particularly beneficial for individuals with drinking addictions.

The interlock program is an effective way to ensure that a person with a history of drink driving can safely resume daily activities without putting members of the community at risk.

Steps To Getting Started On An Interlock Program

Suppose the court orders you to complete the alcohol interlock program. In that case, you will receive a letter from the Roads and Maritime Services Department (RMS) asking you to apply for an interlock licence. Make sure that you have served your licence disqualification period.

  1. Visit your doctor to discuss issues relating to your alcohol use, and they can provide details of support services. A medical consultation certificate will need to be completed by yourself and your doctor.
  2. Find an interlock service provider. There are listings on the RMS webpage.
  3. Pay for your car to be fitted with a device. The service provider can explain how to use the device.
  4. Apply for an interlock licence at your local service NSW centre. Depending on your offence, you may need to pass a licence test.

Remember that your car will only start if your blood alcohol reading is 0.0.

Symptoms Of Alcohol Intoxication

You can be affected by alcohol even if you are not drunk. Alcohol is a depressant drug that affects many areas of your brain. When you drink alcohol, it impairs your driving.

Alcohol can affect your body in the following ways:

  • Bloodshot eyes
  • Erratic driving
  • Impaired speech
  • Euphoria and false confidence
  • Confusion
  • Impaired coordination and balance
  • Vomiting
  • Slowed brain function
  • Impacts judgement
  • Fatigue

Factors That May Affect BAC Levels

The rate at which a body metabolises alcohol can vary from person to person. Several factors can influence a BAC reading.

  • Gender
  • Height
  • Weight
  • Age
  • Metabolic rate
  • Fitness levels
  • Fatigue
  • Medication or medical issues
  • Food consumption

Drink Driving Facts

  • In more than 20% of all fatal crashes across NSW, drink driving is a factor
  • Drink driving is responsible for at least 100 deaths in NSW every year
  • 87% of alcohol-related fatalities in NSW are male
  • More than 73% of deaths for drunk driving occurs in country NSW
  • A blood alcohol level of .05 doubles your risk of being in an accident
  • A conviction under criminal law may result in a jail sentence

Where Can You Get Legal Help?

Lawyers Specialising In Traffic Law

A criminal conviction for drink driving is treated extremely seriously as the act of drink driving puts people in the community at significant risk of injury or death. The courts deal with these matters harshly and swiftly. Therefore, you must get a qualified criminal and traffic lawyer who has experience dealing with drink driving matters in the NSW court system.

A good lawyer will know the general attitudes of the magistrates and police prosecutors in the court that you will appear in and have a good working relationship with them. Criminal law is complex, and your lawyer should be very familiar with all of the specific regulations regarding your case and provide viable options.

Law Access NSW

Law Access NSW is a government department that provides free legal information and referrals to relevant services.

Legal Aid NSW

Legal aid provides many online resources, factsheets and information to help prepare you before you go to court. In some cases, they can offer free legal advice.

It has approved activities or treatments, called a Work and Development Order (WDO). That may allow you to clear up to $1000 off your fines.

Aboriginal Legal Service (ALS)

If you are an Aboriginal or Torres Strait Islander, the ALS can provide free legal advice.

What Legal Defences Exist In New South Wales For Drink Driving?

Even as a first offence, drink driving will most likely result in a criminal conviction, fines, loss of licence, and potentially a prison sentence. Most will result in a guilty plea, each case is different, but circumstances can occur when a lawyer may successfully defend your case in court.

Challenge The BAC Reading

Your blood alcohol level may go up or down over time. Therefore, the reading from the alcoholmeter may not accurately represent your blood alcohol level at the time of driving.

The Two Hour Rule

Police can not rely on a breath test taken over 2 hours since you last drove a car. If so, lawyers may be able to get the blood alcohol reading evidence removed from your case.

The Home Safe Rule

When you are in the confines of your home, the police are not legally entitled to submit you to a breath test. If the police breach those rules, the court may exclude the evidence.

Honest And Reasonable Mistake

You might not be convicted of drink driving if you honestly and reasonably believed that you were under the limit when driving. Due to advertising it is becoming more difficult to prove that it was reasonable. The circumstances when the defence is available includes:  if you believe your drinks were spiked or you were more fatigued than affected by alcohol. Or if you drive your car the next day and believe that your consumed alcohol was eliminated from your system.

Non Conviction Order

The court has the discretion to give you the most lenient penalty available if you can provide character references in your favour, write a letter of apology to the court and complete a traffic offender program. Criminal lawyers can present these materials to the court on your behalf and a verbal submission in the hope to receive a conditional release order without a conviction.

What Do You Do After The Court’s Decision?

After a criminal law court decision, you must ensure that you understand the penalties and restrictions.

If you want to appeal the magistrate’s decision, you have to lodge it within 28 days. Before proceeding, obtain legal advice.

When you get disqualified from driving, you will need to hand in your driver’s license. Do not drive when your licence has been revoked. Otherwise, you can receive a fine of $3300 and or go to jail for up to 6 months.

After your disqualification period is over, you will need to reapply for your license through the (RMS) department.

If you receive a penalty notice, you will need to pay it within 28 days. If you don’t pay your fine within this period, Revenue NSW can take action against you. Court staff can assist you in making financial arrangements if you are unable to pay within the timeframe.


The penalty for drink driving in NSW can vary depending on the range, how much over the limit you were, and whether the offence was your first major traffic offence. Each range has a different licence suspension period and fine.

If your roadside test is over the limit, you will be arrested, taken to the police station for an evidentiary breath test, you will be fingerprinted, have your photo taken and will need to go to court. Your licence could be suspended upon being charged for a middle or high range drink driving offence. Any driver convicted of a repeat, severe drink driving, high-range, or mid-range drink driving offence in NSW must have an interlock installed. This device will help ensure that you keep yourself and others safe by not driving when under the influence of any alcoholic substance.

Understanding factors that influence your BAC can help you to ensure that you stay under the limit.

Legal defence is an option, make sure that you hire lawyers who specialise in traffic and criminal law.

Drink driving is a serious traffic offence. The best possible way to avoid being charged is to drink responsibly and don’t drive when you could be over the limit.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Drink Driving Charges or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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