Driving Offences Involving Alcohol or Other Drugs
Drink Driving
Driving with the presence of alcohol in your breath or blood that is above the prescribed concentration of alcohol (PCA) is an offence under section 110 of the Road Transport Act 2013 (NSW).
PCA charges are common if you have been caught during a police breath test, or by other means of reading the concentration of alcohol in your blood at the time. Drink driving is a serious offence and different levels of PCA charges come with different penalties. If you are found guilty of this offence your licence will be disqualified for a minimum period along with possible fines or imprisonment. If successful, a dismissal or conditional release order without conviction may be imposed.
Different Types of Charges
The charge will range depending on your blood alcohol concentration (BAC), the different types of charges include:
Novice (Zero alcohol reading 0.01-0.019 BAC)
Special Range (0.02 – 0.049)
Low Range PCA (0.05 – 0.079 BAC)
Mid-Range PCA (0.08 – 0.149 BAC)
High Range PCA (0.15 or more BAC)
Special and novice charges only apply to learners and provisional licence holders.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond reasonable doubt:
You drove a motor vehicle, or
occupied the driving seat of a motor vehicle and attempted to put the motor vehicle in motion, or
If the person is the holder of an applicable driver's licence (other than an applicable provisional licence or applicable learner licence) occupied the seat in a motor vehicle next to a learner driver who is driving the vehicle and
There was the presence of alcohol in your breath or blood that is above the prescribed concentration of alcohol (PCA).
What is the Difference Between an ‘Automatic’ and a ‘Minimum’ Period of Disqualification?
An automatic period of disqualification is the period that is normally imposed on a person for a particular drink driving offence.
A minimum period of disqualification is the lowest possible period that can be imposed on a person for a particular drink driving offence.
Consider that your licence will not be disqualified if the Magistrate deals with the matter under a dismissal or a conditional release order without conviction.
Maximum Penalties
Defences
Some possible defences available to this charge can include:
Unsafe Reading – your BAC may have been lower at the time of driving than later when stopped by the police. Evidence shows that a BAC can rise between 30 minutes to 1 hour after their last alcoholic drink. This means that when driving your BAC is likely to be lower than when tested.
Police are not permitted to conduct a breath test more than 2 hours after you last drove. If they do so, this evidence is excluded by the court.
Police cannot undergo a breath test on your property. If they do so, this evidence is excluded by the court.
Honest and Reasonable Mistake – if at the time of driving you:
Honestly believed that you were under the limit.
Or you believe that your drink was spiked.
This was a reasonable belief considering all circumstances as determined by the court.
It may be possible to have charges reduced to a lower BAC range.
Drug Driving
Driving with the presence of a prescribed illicit drug in your oral fluid, blood or urine is an offence under section 111 of the Road Transport Act 2013 (NSW).
In NSW, the police have the power to pull drivers over and ask them to participate in a mobile drug test (MDT) instead of or at the same time as a random breath test (RBT).
What is a Prescribed Illicit Drug?
A prescribed illicit drug includes:
THC or ‘cannabis’
Methylamphetamine (speed)
MDMA or ‘ecstasy’
Cocaine
Morphine
If the drug test warranted a positive result, then a secondary test at the police station will be conducted. If this test passes, you will be banned from driving for 24 hours and charged with drug driving. If you are found guilty of the offence your licence will be disqualified for a minimum period along with possible fines or imprisonment. If successful, a dismissal or conditional release order without conviction may be imposed.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You drove a motor vehicle, or
occupied the driving seat of a motor vehicle and attempted to put the motor vehicle in motion, or
If the person is the holder of an applicable driver's licence (other than an applicable provisional licence or applicable learner licence)-occupied the seat in a motor vehicle next to a learner driver who is driving the vehicle and
There was the presence of a prescribed illicit drug in your oral fluid, blood, or urine.
Maximum Penalties
Defences
Some possible defences available to this charge can include:
Honest and Reasonable Mistake – if at the time of driving you held a reasonable belief that you did not commit the offence. Examples of this can include if you:
were ignorant to the fact or honestly believed you did not have drugs in your system,
believe that your drink was spiked.
Section 111(5): Only relating to the presence of morphine, it is a defence that at the time of driving you had the presence of morphine for medical purposes. This includes whether it was a drug prescribed by a medical practitioner or a codeine-based medicinal drug purchased from a pharmacy that had been taken per the pharmacist’s instructions.
Combined Alcohol & Drug Driving
Driving with the presence of both a prescribed illicit drug in your oral fluid, blood, or urine and a prescribed concentration of alcohol (PCA) in your breath or blood is an offence under section 111A of the Road Transport Act 2013 (NSW).
Drivers that test for high or mid-range levels of alcohol will also undergo a roadside drug test. This will also apply to drivers that receive a low-range alcohol reading and have committed a previous offence.
What is a Prescribed Illicit Drug?
A prescribed illicit drug includes:
THC or ‘cannabis’
Methylamphetamine (speed)
MDMA or ‘ecstasy’
Cocaine
Morphine
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You drove a motor vehicle, or
occupied the driving seat of a motor vehicle and attempted to put the motor vehicle in motion, or
If the person is the holder of an applicable driver's licence (other than an applicable provisional licence or applicable learner licence)-occupied the seat in a motor vehicle next to a learner driver who is driving the vehicle and
There was the presence of both a prescribed illicit drug in your oral fluid, blood, or urine and a prescribed concentration of alcohol (PCA) in your breath or blood.
Maximum Penalties
Defences
A possible defence available to this charge can include:
Section 111A(7): Only relating to novice range PCA, it is a defence that the PCA was not caused in whole or in part by:
An alcoholic beverage, other than for religious purposes or,
The consumption or use of another substance, for example, food or medicine, for the purpose of consuming alcohol.
Driving Under the Influence of Alcohol & Other Drugs
Driving or attempting to drive under the influence of alcohol (DUI) or any other drug is an offence under section 112 of the Road Transport Act 2013 (NSW).
A DUI offence is different from a standard drink driving (PCA) offence. The police are not required to prove that you were affected by a specific amount of alcohol or drug, it is enough that you were affected by some amount of alcohol or drug.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You drove a motor vehicle, or
occupied the driving seat of a motor vehicle and attempted to put the motor vehicle in motion, or
If the person is the holder of an applicable driver's licence (other than an applicable provisional licence or applicable learner licence)-occupied the seat in a motor vehicle next to a learner driver who is driving the vehicle and
You were under the influence of alcohol or any other drug.
Maximum Penalties
Defences
Some possible defences available to this charge can include:
Honest and Reasonable Mistake – if at the time of driving you held a reasonable belief that you did not commit the offence. Examples of this can include if you:
were ignorant of the fact or honestly believed you were not under the influence of alcohol or any other drugs.
believe that your drink was spiked.
You may be able to challenge the reading regarding what it was at the time of driving.