Driving under the Influence of Alcohol

Drink driving is a common driving offence in NSW and can have serious consequences. Often, it is assumed that you may have one or two drinks and then drive. However, even a small amount of alcohol can impair a driver’s ability to operate a vehicle safely. The legal limit is 0.05 blood alcohol concentration (BAC) and for learners and P-platers, the limit is zero.

What are the Penalties?

If it is your first time being charged with driving under the influence or low range drink driving, you may be issued with a penalty notice and not have to attend Court. However, you will be subject to an immediate licence suspension for a period of at least 3 months and a fine of $603.

This offence includes a wide spectrum of offending conduct. As such, the type of penalties varies greatly. However, it is common to have your fine and penalty determined in Court. The following penalties may be imposed by a Court:

*second or subsequent offence

The Court may consider sentencing you to one or more of the following:

• Section 10 bond;
• Fine;
• Conditional Release Order (‘CRO’);
• Community Correction Order (‘CCO’);
• Intensive Correction Order (‘ICO’); or
• Full-time imprisonment.
  
  

Section 10 Bond

There are three types of section 10 penalties, including:

• Section 10(1)(a);
• Section 10(1)(c); or
• Section 10A.
  
  

A section 10(1)(a) bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal and/or driving record, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.

A section 10(1)(c) bond involves a finding of guilt, a conviction is recorded, and you can be referred to an intervention program.

A section 10A penalty involves a finding of guilt and a conviction is recorded, but no further action is taken.

CRO

A CRO is a sentence which allows you to remain in the community, but you are supervised by Community Corrections. The Court can decide whether or not to record a conviction. The maximum term of the CRO is two years and may involve conditions such as to be not consume alcohol for the period of the bond. If you breach a CRO, you will be brought before the Magistrate that sentenced you and potentially be re-sentenced to a more serious penalty.

CCO

A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction. If you breach a CCO, you will be brought before the Magistrate that sentenced you and potentially be re-sentenced to a more serious penalty.

ICO

If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as community service, curfew, or rehabilitation. If you breach an ICO, the Parole Board will determine whether to order you serve the remainder of the period in full-time custody. This is because an ICO is a sentence of imprisonment ordered to be served in the community.

Imprisonment

These offences carry a maximum penalty of up to 2 years imprisonment, depending on the factual circumstances of the offending. However, full-time imprisonment is only reserved for the most serious matters.

Alcohol Interlock Program

Should you be convicted of this offence, you will be subject to the Alcohol Interlock Program after completing your relevant period of disqualification. This is a Court-ordered requirement, which involves the installation of an electronic breath testing device (‘interlock device’) to the ignition system of your car. Before you drive, you must complete a breath test on the interlock device. If it detects the presence of alcohol, the car will not start. Random breath tests must also be passed during a journey. The interlock device has a camera, which takes a photo of you providing the breath sample.

If you attempt to drink drive, or interfere with the interlock device, it will be recorded by the device. A zero-alcohol limit applies to all interlock drivers. It is illegal to drive without an interlock device when you are on an interlock licence. It is a serious offence for another person to assist you to start a car with an interlock.

If you receive an interlock order and do not enter the interlock program, you will be disqualified from holding a licence for five years. Driving while disqualified is a serious offence and carries significant penalties.

All participants in the interlock program must visit their GP before enrolling in the program. Some participants may be required to see their GP during and after completion of the program.

The cost involved with participating in the interlock program is approximately $2,200.00 – $2,500.00 per year, which must be paid by you and includes:

• Interlock device installation;
• Monthly interlock device leasing;
• Regular interlock device servicing (monthly or bi-monthly); and
• Device removal at the end of the interlock period.
  
  

You will also be subject to an administration fee of $171.00.

A 35% discount off the full cost of the installation, leasing, servicing, and removal of the interlock device is available to eligible participants. You must hold one of the following:

• Pensioner Concession Card;
• Low Income Health Care Card; or
• Department of Veterans Affairs Gold Card.
  
  

There are certain circumstances in which the Court may make an interlock exemption order, namely:

• You do not have access to a car to install the interlock device;
• You have a medical condition which prevents you from using it; or
• You will suffer severe hardship and the making of exemption order is more appropriate in all the circumstances.
  
  

What are the Defences?

The following are the legal defences for driving under the influence of alcohol in NSW:

• Necessity: The accused was driving under the influence to avoid a greater harm, such as to seek emergency medical assistance or to escape from a dangerous situation. For example, a driver who is intoxicated but drives to the hospital to get help for a sick child may be able to argue that they were acting in necessity.
• Duress: The accused was forced to drive under the influence by the threat of immediate and serious harm to themselves or another person. For example, a driver who is threatened with violence by a passenger if they do not drive may be able to argue that they were acting under duress.
  
  

It is important to note that the burden of proof lies with the Prosecution to prove that the accused is guilty of the offence beyond a reasonable doubt. If the accused raises a defence that casts a reasonable doubt on their guilt, then the accused must be acquitted.

Why Jackson John?

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