Drink and Drug Driving Offences

1. Novice Range Drink Driving is an offence under section 110(1) of the Road Transport Act 2013 (NSW).
2. This offence is a summary offence. It is always dealt with in the Local Court.
3. The maximum penalty is 20 penalty units (i.e. a fine of up to $2,200) for first offenders. If this is your second or subsequent offence, the maximum penalty is 30 penalty units (i.e. a fine of up to $3,300).
4. An automatic disqualification period is attached to this offence. If this is your first major traffic offence, an automatic disqualification period of 6 months which may be reduced by a Court to a minimum of 3 months. If this is your second or subsequent offence and you are not on the interlock, there is an automatic disqualification period of 12 months which may be reduced by a Court to a minimum of 6 months. If you are put on the interlock, the maximum disqualification period is 3 months which the Court can reduce to a minimum of 1 month.
5. If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is possible that a criminal conviction will be recorded against you.

1. That you are a novice driver;
2. That you were intentionally driving or attempting to drive a motor vehicle; and
3. That you had a Blood Alcohol Concentration (BAC) of more than 0.00 and less than 0.05.

Who is a ‘novice driver’?

A Learner or Provisional License Holder.

What amounts to ‘driving’?

‘Driving’ requires that you are in control of the vehicle and are intentionally doing something that is causing the vehicle to move. It is also considered ‘driving’ during the period of time that you have been stopped by police and are waiting to be breathalysed. If you have switched positions with a passenger while approaching a breath testing station, and it could be proven beyond reasonable doubt that you switched, that is also considered ‘driving’.

What amounts to ‘attempting to drive’?

‘Attempting to drive’ requires that you are sitting in the driver’s seat with an intention to drive the motor vehicle and have positively done something that shows your intention to drive (e.g. turning on the ignition and putting your seatbelt on).

What is a second or subsequent offence?

You will be taken as having committed a ‘second or subsequent offence’ if you have been convicted of this offence or another major traffic offence in the 5-year period before conviction. This does not apply if you were given a section 10 for the first offence (i.e. the second or subsequent offence within the 5-year period following your section 10 will be treated as your first offence).

What is an Automatic Disqualification Period?

This is the default disqualification period that the Court will impose for your conviction. The Court may vary the length of your disqualification based on the seriousness of your offending, your personal circumstances, criminal and traffic history, whether you entered a plea of guilty, whether you took part in a traffic offenders program and so on.

What is a Mandatory Alcohol Interlock Program?

A Mandatory Alcohol Interlock Program involves the installation of a device into your motor vehicle which will require you to provide a breath sample before the vehicle can start.

What is an immediate license suspension?

Your driver’s license may be immediately suspended if police give you an “immediate license suspension notice” at the time when you are alleged to have committed an offence. This does not apply to Novice Range Driving.

1. You are not a novice driver;
2. You were not driving or attempting to drive the motor vehicle;
3. You did not intend to drive or attempt to drive the motor vehicle;
4. You were at home (I.e. “Home Safe Rule” which includes being tested on your driveway);
5. Your breath or blood was tested more than 2 hours after driving;
6. You honestly and reasonably believed that you were not under the influence of alcohol (e.g. if you were the victim of ‘spiking’); and
7. You did not consume an alcoholic beverage or any other substance (e.g. medicine or food) for the purpose of having alcohol.

Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you are a novice driver that was drink driving.

You may accept that you committed the offence, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.

Will I be convicted of Novice Range Drink Driving?

This depends entirely on the circumstances surrounding your matter. It must be proven, beyond reasonable doubt, that you are a novice driver that intentionally drove or attempted to drive a motor vehicle while under a BAC that is less than 0.05 and more than 0.00.

This includes proof that you were the driver or attempted driver of a motor vehicle, that your BAC was over 0.00 and that you were a novice driver at the time.

It also depends on whether you intended to drive the motor vehicle, whether you were at home when tested, whether 2 hours had lapsed since having last driven, whether you honestly and reasonably believed that you were not under the influence of alcohol and whether you consumed an alcoholic beverage or any other substance (e.g. medicine or food) for the purpose of having alcohol.

Will I lose my license for Novice Range Drink Driving?

If you have entered a plea of guilty or have been found guilty to Novice Range Drink Driving, you will be facing a fine and a minimum license disqualification period of 3 months (for first offence), 6 months (for second or subsequent offence without interlock) or 1 month (for second or subsequent offence with interlock). However, you will not lose your license if dealt with by way of a section 10 order. A section 10 order does not record a conviction and as such, you will not face any penalty for committing the offence. You will not be entitled to a section 10 where you have already been dealt with under a section 10 in the 5 years before committing the new offence.

Will I get a section 10?

This will be determined on a range of factors such as the circumstances surrounding your offending (e.g. if you were driving dangerously), your criminal and traffic record, your character, your need for a license, whether you completed a traffic offenders program and whether you entered a plea of guilty. The Court will not be able to order a section 10 where you have already been dealt with under a section 10 in the 5 years before committing the new offence.

Will I have to do the Mandatory Alcohol Interlock Program?

If you are convicted of a first offence, you will not be required to participate in the program. However, if you were convicted of a second or subsequent offence and were not dealt with by way of a section 10 order, then you will be required to participate in the program for a minimum of 12 months unless a court makes an exemption order.

1. Low Range Drink Driving is an offence under section 110(3) of the Road Transport Act 2013 (NSW).
2. This offence is a summary offence. It can either be dealt with by way of a penalty notice or a Court Attendance Notice (CAN) requiring the matter to be dealt with at the Local Court.
3. If the Police decide to issue a penalty notice, the result is a on the spot fine of $561 and automatic suspension from driving for three months.
4. A person can elect to take the matter to court to try and avoid the suspension period, however the court has the power to impose the maximum penalty of 20 penalty units (i.e. a fine of up to $2,200) for first offenders. If this is your second or subsequent offence, the maximum penalty is 30 penalty units (i.e. a fine of up to $3,300).
5. An automatic disqualification period is attached to this offence if the person attends court. If this is your first major traffic offence, an automatic disqualification period of 6 months which may be reduced by a Court to a minimum of 3 months. If this is your second or subsequent offence and you are not on the interlock, there is an automatic disqualification period of 12 months which may be reduced by a Court to a minimum of 6 months. If you are put on the interlock program, the maximum disqualification period is 3 months which the Court can reduce to a minimum of 1 month.
6. If you elect to go to court, a number of different sentences can be imposed. It is possible that a criminal conviction will be recorded against you.

1. That you were intentionally driving or attempting to drive a motor vehicle; and
2. That you had a Blood Alcohol Concentration (BAC) of more than 0.05 and less than 0.08.

What amounts to ‘driving’?

‘Driving’ requires that you are in control of the vehicle and are intentionally doing something that is causing the vehicle to move. It is also considered ‘driving’ during the period of time that you have been stopped by police and are waiting to be breathalysed. If you have switched positions with a passenger while approaching a breath testing station, and it could be proven beyond reasonable doubt that you switched, that is also considered ‘driving’.

What amounts to ‘attempting to drive’?

‘Attempting to drive’ requires that you are sitting in the driver’s seat with an intention to drive the motor vehicle and have positively done something that shows your intention to drive (e.g. turning on the ignition and putting your seatbelt on).

What is a second or subsequent offence?

You will be taken as having committed a ‘second or subsequent offence’ if you have been convicted of this offence or another major traffic offence in the 5-year period before conviction. This does not apply if you were given a section 10 for the first offence (i.e. the second or subsequent offence within the 5-year period following your section 10 will be treated as your first offence).

What is an Automatic Disqualification Period?

This is the default disqualification period that the Court will impose for your conviction. The Court may vary the length of your disqualification based on the seriousness of your offending, your personal circumstances, criminal and traffic history, whether you entered a plea of guilty, whether you took part in a traffic offenders program and so on.

What is a Mandatory Alcohol Interlock Program?

A Mandatory Alcohol Interlock Program involves the installation of a device into your motor vehicle which will require you to provide a breath sample before the vehicle can start.

What is an immediate license suspension?

Your driver’s license may be immediately suspended if police give you an “immediate license suspension notice” at the time when you are alleged to have committed an offence. This does not apply to Low Range Drink Driving.

1. You were not driving, attempting to drive or sitting next to a learner driver who was driving the motor vehicle;
2. You did not intend to drive or attempt to drive the motor vehicle;
3. You were at home (I.e. “Home Safe Rule” which includes being tested on your driveway);
4. Your breath or blood was tested more than 2 hours after driving; and
5. You honestly and reasonable believed that you were not under the influence of alcohol (e.g. if you were the victim of ‘spiking’).

Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you were driving or attempting to drive a car while having the low range BAC level in your breath/blood.

You may accept that you committed the offence, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.

Will I be convicted of Low Range Drink Driving?

This depends entirely on the circumstances surrounding your matter. It must be proven, beyond reasonable doubt, that you intentionally drove, attempted to drive or sat next to a learner driver who is driving a motor vehicle while you were under a BAC of less than 0.08 and more than 0.05.

This includes proof that you were the driver, attempted driver or occupying the seat next to a learner driver who is driving the motor vehicle and that your BAC was over 0.05 and less than 0.08.

It also depends on whether you intended to drive the motor vehicle, whether you were at home when tested, whether you honestly and reasonably believed that you were not under the influence of alcohol and whether 2 hours had lapsed since having last driven.

Will I lose my license for Low Range Drink Driving?

If you have entered a plea of guilty or have been found guilty to Low Range Driving, you will be facing a fine and a minimum license disqualification period of 3 months (for first offence), 6 months (for second or subsequent offence without interlock) or 1 month (for second or subsequent offence with interlock). However, you will not lose your license if dealt with by way of a section 10 order. A section 10 order does not record a conviction and as such, you will not face any penalty for committing the offence. You will not be entitled to a section 10 where you have already been dealt with under a section 10 in the 5 years before committing the new offence.

Will I get a section 10?

This will be determined on a range of factors such as the circumstances surrounding your offending (e.g. if you were driving dangerously), your criminal and traffic record, your character, your need for a license, whether you completed a traffic offenders program and whether you entered a plea of guilty. The Court will not be able to order a section 10 where you have already been dealt with under a section 10 in the 5 years before committing the new offence.

Will I have to do the Mandatory Alcohol Interlock Program?

If you are convicted of a first offence, you will not be required to participate in the program. However, if you were convicted of a second or subsequent offence and were not dealt with by way of a section 10 order, then you will be required to participate in the program for a minimum of 12 months unless a court makes an exemption order.

1. High Range Drink Driving is an offence under section 110(5) of the Road Transport Act 2013 (NSW).
2. This offence is a summary offence. It is always dealt with in the Local Court.
3. The maximum penalty is 18 months imprisonment and/or 30 penalty units (i.e. a fine of up to $3,300) for first offenders. If this is your second or subsequent offence, the maximum penalty is 24 months imprisonment and/or 50 penalty units (i.e. a fine of up to $5,500).
4. An automatic disqualification period is attached to this offence. If this is your first major traffic offence and you are not put on interlock, there is an automatic disqualification period of 3 years which may be reduced by a Court to a minimum of 12 months. If this is your second or subsequent offence and you are not put on interlock, there is an automatic disqualification period of 5 years which may be reduced by a Court to a minimum of 2 years. If this is your first major traffic offence and you are put on the interlock, the maximum disqualification period is 9 months which the Court can reduce to a minimum of 6 months. If this is your second or subsequent offence and you are put on interlock, the maximum disqualification period is 12 months which the Court can reduce to a minimum of 9 months. There may also likely be an immediate licence suspension.
5. If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is possible that a criminal conviction will be recorded against you.

1. That you were intentionally driving, attempting to drive or sitting next to a learner driver who is driving the motor vehicle; and
2. That you had a Blood Alcohol Concentration (BAC) of over 0.15.

What amounts to ‘driving’?

‘Driving’ requires that you are in control of the vehicle and are intentionally doing something that is causing the vehicle to move. It is also considered ‘driving’ during the period of time that you have been stopped by police and are waiting to be breathalysed. If you have switched positions with a passenger while approaching a breath testing station, and it could be proven beyond reasonable doubt that you switched, that is also considered ‘driving’.

What amounts to ‘attempting to drive’?

‘Attempting to drive’ requires that you are sitting in the driver’s seat with an intention to drive the motor vehicle and have positively done something that shows your intention to drive (e.g. turning on the ignition and putting your seatbelt on).

What is a second or subsequent offence?

You will be taken as having committed a ‘second or subsequent offence’ if you have been convicted of this offence or another major traffic offence in the 5-year period before conviction. This does not apply if you were given a section 10 for the first offence (i.e. the second or subsequent offence within the 5-year period following your section 10 will be treated as your first offence).

What is an Automatic Disqualification Period?

This is the default disqualification period that the Court will impose for your conviction. The Court may vary the length of your disqualification based on the seriousness of your offending, your personal circumstances, criminal and traffic history, whether you entered a plea of guilty, whether you took part in a traffic offenders program and so on.

What is a Mandatory Alcohol Interlock Program?

A Mandatory Alcohol Interlock Program involves the installation of a device into your motor vehicle which will require you to provide a breath sample before the vehicle can start.

What is an immediate license suspension?

Your driver’s license may be immediately suspended if police give you an “immediate license suspension notice” at the time when your breath or blood was tested. It is up to police in the circumstances to decide whether or not to serve the notice. If the notice was given, the suspension will come into effect from that time onwards.

1. You were not driving, attempting to drive or sitting next to a learner driver who was driving the motor vehicle;
2. You did not intend to drive or attempt to drive the motor vehicle;
3. You were at home (I.e. “Home Safe Rule” which includes being tested on your driveway);
4. You honestly and reasonably believed that you were not under the influence of alcohol (e.g. if you were the victim of ‘spiking’); and
5. Your breath or blood was tested more than 2 hours after driving.

Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you were driving or attempting to drive a car while having the high range BAC level in your breath/blood.

You may accept that you committed the offence, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.

Will I be convicted of High Range Drink Driving?

This depends entirely on the circumstances surrounding your matter. It must be proven, beyond reasonable doubt, that you intentionally drove, attempted to drive or sat next to a learner driver who is driving a motor vehicle while you were under a BAC of over 0.15.

This includes proof that you were the driver, attempted driver or occupying the seat next to a learner driver who is driving the motor vehicle and that your BAC was over 0.15.

It also depends on whether you intended to drive the motor vehicle, whether you were at home when tested, whether you honestly and reasonably believed that you were not under the influence of alcohol and whether 2 hours had lapsed since having last driven.

Will I go to jail for High Range Drink Driving?

If you have entered a plea of guilty or have been found guilty to High Range Drink Driving, the maximum penalty that can be imposed is a fine of $3,300 and/or 18 months imprisonment (for first offence) or $5,500 and/or 24 months imprisonment (for second and subsequent offences). The maximum penalty is handed down only in the most serious of circumstances. The type and severity of your punishment depends on the circumstances surrounding your offending (e.g. if you were driving dangerously), your criminal and traffic record, your character, your need for a license, whether you completed a traffic offenders program and whether you entered a plea of guilty.

Will I lose my license for High Range Drink Driving?

If you have entered a plea of guilty or have been found guilty to High Range Drink Driving, you will be facing a fine and/or imprisonment and a minimum license disqualification period of 6 months (for first offence), 12 months (for first offence without interlock), 9 months (for second or subsequent offence) or 2 years (for second or subsequent offence without interlock)

Will I have to do the Mandatory Alcohol Interlock Program?

Yes. Whether it was your first or second or subsequent high range drink driving, the Mandatory Alcohol Interlock Program is compulsory for you to complete. If you were convicted and dealt with by way of a section 10 order, you would not be required to do the program. However, section 10 orders are not likely in high range drink driving matters.

1. Refuse to Submit to Breath Test is an offence under Schedule 3 Clause 16(1)(a) of the Road Transport Act 2013 (NSW).
2. This offence is a summary offence. It is always dealt with in the Local Court.
3. The maximum penalty is 10 penalty units (i.e. a fine of up to $1,100) for first offenders. If this is your second or subsequent offence major traffic offence in the last 5 years, the maximum penalty becomes 18 months imprisonment and/or 30 penalty units (i.e. a fine of up to $3,300).
4. The Court may disqualify your licence for whatever duration they see fit. There is no prescribed minimum, maximum or automatic periods of disqualification. No immediate licence suspension can be issued for committing this offence.
5. If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is possible that a criminal conviction will be recorded against you.

1. That you were intentionally driving, attempting to drive or sitting next to a learner driver who is driving the motor vehicle; and
2. That you failed/refused to submit to a breath test.

What amounts to ‘driving’?

‘Driving’ requires that you are in control of the vehicle and are intentionally doing something that is causing the vehicle to move. It is also considered ‘driving’ during the period of time that you have been stopped by police and are waiting to be breathalysed. If you have switched positions with a passenger while approaching a breath testing station, and it could be proven beyond reasonable doubt that you switched, that is also considered ‘driving’.

What amounts to ‘attempting to drive’?

‘Attempting to drive’ requires that you are sitting in the driver’s seat with an intention to drive the motor vehicle and have positively done something that shows your intention to drive (e.g. turning on the ignition and putting your seatbelt on).

What is the difference between ‘breath test’ and ‘breath analysis’?

A breath test is done during a Random Breath Test (RBT) when you are stopped and tested using a small portable breathalyser device. This reading is not admissible in Court. After there is a positive reading, you will be required to do a breath analysis. A breath analysis is done using a more sophisticated breath testing machine (otherwise known as a ‘booze bus’). This reading is admissible in Court. For information on refusing to submit to a breath analysis, check out our article (Insert article link – Refuse to Submit to Breath Analysis).

What amounts to ‘refuse/fail to submit to a breath test’?

This means that you have not followed the directions of the officer while being breathalysed. For example, that you did not speak into the device or that you intentionally spoke too softly such that the device was not able to detect your breath. Failing to stop at a Random Breath Test (RBT) station does not amount to refusing/failing to submit a breath test, it is a separate offence.

What is a second or subsequent offence?

You will be taken as having committed a ‘second or subsequent offence’ if you have been convicted of this offence or another major traffic offence in the 5-year period before conviction. This does not apply if you were given a section 10 for the first offence (i.e. the second or subsequent offence within the 5-year period following your section 10 will be treated as your first offence).

What is a Disqualification Period?

This is a period of time imposed by the Court during which you are not allowed to drive or a car. The Court may vary the length of your disqualification based on the seriousness of your offending, your personal circumstances, criminal and traffic history, whether you entered a plea of guilty, whether you took part in a traffic offenders program and others.

What is a Mandatory Alcohol Interlock Program?

A Mandatory Alcohol Interlock Program involves the installation of a device into your motor vehicle which will require you to provide a breath sample before the vehicle can start. There is no mandatory interlock for this offence.

What is an immediate license suspension?

Your driver’s license will be immediately suspended if police give you an “immediate license suspension notice”. An immediate license suspension does not apply to this offence.

1. You were not driving, attempting to drive or sitting next to a learner driver who was driving the motor vehicle;
2. You did not intend to drive or attempt to drive the motor vehicle;
3. You could not, for medical purposes, properly submit to the breath test;
4. You were at home (I.e. “Home Safe Rule” which includes being tested on your driveway);
5. Your breath or blood was tested more than 2 hours after driving; and
6. You may have been admitted to a hospital and the breath test would have prevented you from receiving proper care or treatment.

Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you refused or failed to submit to a breath test.

You may accept that you committed the offence, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.

Will I be convicted of refusing/failing to submit to a breath test?

This depends entirely on the circumstances surrounding your matter. It must be proven, beyond reasonable doubt, that you intentionally drove, attempted to drive or sat next to a learner driver who is driving a motor vehicle and refused/failed to submit to the breath test.

This includes proof that you were the driver, attempted driver or occupier of the seat next to a learner driver who is driving the motor vehicle and that you acted in a way that amounts to refusing/failing to submit to a breath test.

It also depends on whether you intended to drive the motor vehicle, whether you could not, for medical purposes, properly submit to the breath test, whether you were tested at home, whether it had exceeded 2 hours since having driven and whether you were submitted to a hospital and the breath test would have prevented you from receiving proper care or treatment.

Will I go to jail for a refusing/failing to submit to a breath test?

There is no term of imprisonment for your first offence, only a maximum fine of $1,100 and a disqualification period (if the Court finds it necessary). However, if you were convicted of a second or subsequent offence then you are subject to a maximum penalty of $3,300 and/or 18 months imprisonment with a disqualification period (if the Court finds it necessary). The maximum penalty is handed down in the most serious of circumstances. The type and severity of your punishment depends on the circumstances surrounding your offending (e.g. if you were driving dangerously), your criminal and traffic record, your character, your need for a license, whether you completed a traffic offenders program and whether you entered a plea of guilty.

Will I lose my license?

If you have entered a plea of guilty or have been found guilty of refusing/failing to submit to a breath test, the Court may disqualify your license. Whether your license will be disqualified and if so, the length of the disqualification, will depend on a range of factors such as the circumstances surrounding your offending (e.g. if you were driving dangerously), your criminal and traffic record, your character, your need for a license, whether you completed a traffic offenders program and whether you entered a plea of guilty.

Will I get a section 10?

This will be determined on a range of factors such as the circumstances surrounding your offending (e.g. if you were driving dangerously), your criminal and traffic record, your character, your need for a license, whether you completed a traffic offenders program and whether you entered a plea of guilty. The Court will not be able to order a section 10 where you have already been dealt with under a section 10 in the 5 years before committing the new offence.

Will I have to do the Mandatory Alcohol Interlock Program?

No.

Does the “Home Safe Rule” Apply?

Yes. You cannot be breath tested in your personal home (including your driveway).

1. Refuse to Submit to Oral Fluid Test is an offence under Schedule 3 Clause 16(1)(c) of the Road Transport Act 2013 (NSW).
2. This offence is a summary offence. It is always dealt with in the Local Court.
3. The maximum penalty is 10 penalty units (i.e. a fine of up to $1,100) for first offenders. If this is your second or subsequent major traffic offence in the last 5 years, the maximum penalty becomes 18 months imprisonment and/or 30 penalty units (i.e. a fine of up to $3,300).
4. The Court may disqualify your licence for whatever duration they see fit. There is no prescribed minimum, maximum or automatic periods of disqualification. An immediate licence suspension will not be issued for committing this offence.
5. If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is possible that a criminal conviction will be recorded against you.

1. That you were intentionally driving, attempting to drive or sitting next to a learner driver who is driving the motor vehicle; and
2. That you failed/refused to submit to an oral fluid test.

What amounts to ‘driving’?

‘Driving’ requires that you are in control of the vehicle and are intentionally doing something that is causing the vehicle to move. It is also considered ‘driving’ during the period of time that you have been stopped by police and are waiting to be breathalysed. If you have switched positions with a passenger while approaching a breath testing station, and it could be proven beyond reasonable doubt that you switched, that is also considered ‘driving’.

What amounts to ‘attempting to drive’?

‘Attempting to drive’ requires that you are sitting in the driver’s seat with an intention to drive the motor vehicle and have positively done something that shows your intention to drive (e.g. turning on the ignition and putting your seatbelt on).

What is an ‘oral fluid test’?

An oral fluid test is the use of a small device that swabs the fluid (i.e. saliva) from your mouth to determine whether it contains any illicit drugs. This is usually done in a Mobile Drug Test (MDT).

What amounts to ‘refuse/fail to submit to an oral fluid test’?

This means that you have not followed the directions of the officer while he/she was undertaking the oral fluid test (for example, if you refused to open your mouth).

What is a second or subsequent offence?

You will be taken as having committed a ‘second or subsequent offence’ if you have been convicted of this offence or another major traffic offence in the 5-year period before conviction. This does not apply if you were given a section 10 for the first offence (i.e. the second or subsequent offence within the 5-year period following your section 10 will be treated as your first offence).

What is a Disqualification Period?

This is a period of time imposed by the Court during which you are not allowed to drive or a car. The Court may vary the length of your disqualification based on the seriousness of your offending, your personal circumstances, criminal and traffic history, whether you entered a plea of guilty, whether you took part in a traffic offenders program and others.

What is a Mandatory Alcohol Interlock Program?

A Mandatory Alcohol Interlock Program involves the installation of a device into your motor vehicle which will require you to provide a breath sample before the vehicle can start. There is no mandatory interlock for this offence.

What is an immediate license suspension?

Your driver’s license will be immediately suspended if police give you an “immediate license suspension notice”. An immediate license suspension does not apply to this offence.

1. You were not driving, attempting to drive or sitting next to a learner driver who was driving the motor vehicle;
2. You did not intend to drive or attempt to drive the motor vehicle;
3. You could not, for medical purposes, properly submit to the oral fluid test;
4. You were at home (I.e. “Home Safe Rule” which includes being tested on your driveway);
5. You were tested more than 2 hours after driving; and
6. You may have been admitted to a hospital and the oral fluid test would have prevented you from receiving proper care or treatment.

Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you refused or failed to submit to an Oral Fluid Test.

You may accept that you committed the offence, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.

Will I be convicted of refusing/failing to submit to an Oral Fluid Test?

This depends entirely on the circumstances surrounding your matter. It must be proven, beyond reasonable doubt, that you intentionally drove, attempted to drive or sat next to a learner driver who is driving a motor vehicle and refused/failed to submit to the oral fluid test.

This includes proof that you were the driver, attempted driver or occupier of the seat next to a learner driver who is driving the motor vehicle and that you acted in a way that amounts to refusing/failing to submit to an oral fluid test.

It also depends on whether you intended to drive the motor vehicle, whether you could not, for medical purposes, properly submit to the oral fluid test, whether you were tested at home, whether it had exceeded 2 hours since having driven and whether you were submitted to a hospital and the oral fluid test would have prevented you from receiving proper care and/or treatment.

Will I go to jail for a refusing/failing to submit to an Oral Fluid Test?

There is no term of imprisonment for your first offence, only a maximum fine of $1,100 and a disqualification period (if the Court finds it necessary). However, if you were convicted of a second or subsequent offence then you are subject to a maximum penalty of $3,300 and/or 18 months imprisonment with a disqualification period (if the Court finds it necessary). The maximum penalty is handed down in the most serious of circumstances. The type and severity of your punishment depends on the circumstances surrounding your offending (e.g. if you were driving dangerously), your criminal and traffic record, your character, your need for a license, whether you completed a traffic offenders program and whether you entered a plea of guilty.

Will I lose my license?

If you have entered a plea of guilty or have been found guilty of refusing/failing to submit to an oral fluid test, the Court may disqualify your license. Whether your license will be disqualified and if so, the length of the disqualification, will depend on a range of factors such as the circumstances surrounding your offending (e.g. if you were driving dangerously), your criminal and traffic record, your character, your need for a license, whether you completed a traffic offenders program and whether you entered a plea of guilty.

Will I get a section 10?

This will be determined on a range of factors such as the circumstances surrounding your offending (e.g. if you were driving dangerously), your criminal and traffic record, your character, your need for a license, whether you completed a traffic offenders program and whether you entered a plea of guilty. The Court will not be able to order a section 10 where you have already been dealt with under a section 10 in the 5 years before committing the new offence.

Will I have to do the Mandatory Alcohol Interlock Program?

No.

Does the “Home Safe Rule” Apply?

Yes. An oral fluid test cannot be conducted on your personal premises (including your driveway).

After your period of disqualification ends, you will be required to install an interlock device into your motor vehicle for a period of time set by the Court. An interlock is a breath testing device that is installed into your vehicle. For your car to start, you must provide a sample of your breath to the device. You may also be required to do randomly timed breath tests during a journey. If you have more than zero blood alcohol concentration (BAC) in your breath, the car will not start and the data is saved for review by the RMS who will decide on whether or not you have sufficiently completed the program.

You will be required to complete the Mandatory Interlock Program if you were convicted of a major traffic offence or a second/subsequent commission of certain offences. Some of these offences include:

You will not be required to do the program if the court makes an exemption order. Exemption orders are granted in very limited circumstances such as:

1. If you do not have access to a vehicle; or
2. If you have a medical condition that prevents you from providing a proper breath sample and the device cannot be modified to accommodate your condition.

If you do not apply for the interlock license and an exemption order was not made, you will remain disqualified for up to 5 years after your conviction.

1. After your disqualification period ends, you will be required to go to the RMS and apply for an interlock license;
2. When you receive the license, you need to find an interlock installer and have the device installed in your motor vehicle (you are required to pay for this – it is not deducted from any fine that the Court may have imposed);
3. After installing the device, you must provide a sample of your breath before every time you drive the vehicle and randomly throughout your journey; and
4. After the interlock period has ended, RMS will review the data collected by the device and consider other circumstances to decide whether or not you have sufficiently completed the program.

While you are participating in the program, there are compulsory inspections that are done on the data collected by the interlock. After your participation in the program, RMS will inspect all the data and make a decision about your performance.

Failing to comply with the program can include, but is not limited to, any of the following:

1. License suspended while participating in the program;
2. Attempting to drive a motor vehicle that does not have an interlock; and/or
3. RMS is not satisfied by your overall performance in the program (e.g. they see that you attempted to drive while intoxicated on one or more occasion).

If the RMS is satisfied with your level of compliance in the program, they will grant you an unrestricted/provisional license.

If the RMS is not satisfied with your level of compliance in the program, they may:

1. Require you to do a Fitness to Drive assessment; and/or
2. May extend your time on the interlock.

1. Driving under the Influence of Drugs is an offence under section 112(1) of the Road Transport Act 2013 (NSW).
2. This offence is a summary offence. It is always dealt with in the Local Court.
3. The maximum penalty is 18 months imprisonment and/or 30 penalty units (i.e. a fine of up to $3,300) for first offenders. If this is your second or subsequent offence, the maximum penalty is 24 months imprisonment and/or 50 penalty units (i.e. a fine of up to $5,500).
4. An automatic disqualification period is attached to this offence. If this is your first major traffic offence, there is an automatic disqualification period of 12 months which may be reduced by a Court to a minimum of 6 months. If this is your second or subsequent offence, there is an automatic disqualification period of 3 years which may be reduced by a Court to a minimum of 12 months. There may also likely be an immediate licence suspension.
5. If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is possible that a criminal conviction will be recorded against you.

1. That you were intentionally driving, attempting to drive or sitting next to a learner driver who is driving the motor vehicle; and
2. That you were under the influence of drugs.

What amounts to ‘driving’?

‘Driving’ requires that you are in control of the vehicle and are intentionally doing something that is causing the vehicle to move. It is also considered ‘driving’ during the period of time after you have been stopped by police.

What amounts to ‘attempting to drive’?

‘Attempting to drive’ requires that you are sitting in the driver’s seat with an intention to drive the motor vehicle and have positively done something that shows your intention to drive (e.g. turning on the ignition and putting your seatbelt on).

Which substances amount to a ‘drug’?

A ‘drug’ under the offence is any prohibited drug in the Drug Misuse and Trafficking Act 1985 (NSW). Some of the common prohibited drugs are cannabis, MDMA (ecstasy), cocaine and methylamphetamine.

What amounts to being ‘under the influence’?

This is a matter of fact and depends on the circumstances surrounding your offending and on the observations made by police or any other civilian witness. Such observations can include the manner of your driving, the smell of drugs on you, messy clothing, slurred/slow speech, red and watery eyes and so on. It does not have to be proven that your driving must have been affected by being under the influence. It will depend on how specific the witness observations are and whether there are any inconsistencies in the statements.

What is a second or subsequent offence?

You will be taken as having committed a ‘second or subsequent offence’ if you have been convicted of this offence or another major traffic offence in the 5-year period before conviction. This does not apply if you were given a section 10 for the first offence (i.e. the second or subsequent offence within the 5-year period following your section 10 will be treated as your first offence).

What is an Automatic Disqualification Period?

This is the default disqualification period that the Court will impose for your conviction. The Court may vary the length of your disqualification based on the seriousness of your offending, your personal circumstances, criminal and traffic history, whether you entered a plea of guilty, whether you took part in a traffic offenders program and so on.

What is a Mandatory Alcohol Interlock Program?

A Mandatory Alcohol Interlock Program involves the installation of a device into your motor vehicle which will require you to provide a breath sample before the vehicle can start. You will not be required to do the interlock program if convicted of a DUI for drugs.

What is an immediate license suspension?

Your driver’s license will be immediately suspended if police give you an “immediate license suspension notice” at the time of the oral fluid test. It is up to police in the circumstances to decide whether or not to give you the notice. If the notice was given, the suspension will come into effect from that time onwards.

1. You were not driving, attempting to drive or sitting next to a learner driver who was driving the motor vehicle;
2. You did not intend to drive or attempt to drive the motor vehicle;
3. You may argue that the witness observations were not consistent;
4. You may argue that the witness observations were not specific enough for you to be found guilty;
5. You may argue that there was not a sufficient link between your driving and being ‘under the influence’; and
6. You honestly and reasonably believed that you were not under the influence of drugs (e.g. if you were the victim of ‘spiking’).

Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you were driving or attempting to drive a car while under the influence of drugs.

You may accept that you committed the offence, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.

Will I be convicted of Driving under the Influence of Drugs?

This depends entirely on the circumstances surrounding your matter. It must be proven, beyond reasonable doubt, that you intentionally drove, attempted to drive or sat next to a learner driver who is driving a motor vehicle while you were under the influence of drugs.

This includes proof that you were the driver, attempted driver or occupying the seat next to a learner driver who is driving the motor vehicle and that you were ‘under the influence’.

It also depends on whether you intended to drive the motor vehicle, whether you honestly and reasonably believed that you were not under the influence of drugs (e.g. being spiked), whether the witness observations were consistent and/or specific enough to convict you and whether there was a sufficient link between your driving and being ‘under the influence’.

Will I go to jail for Driving under the Influence of Drugs?

If you have entered a plea of guilty or have been found guilty to a DUI, the maximum penalty that can be imposed is a fine of $3,300 and/or 18 months imprisonment (for first offence) or $5,500 and/or 24 months imprisonment (for second and subsequent offences). The maximum penalty is handed down only in the most serious of circumstances. The type and severity of your punishment depends on the circumstances surrounding your offending (e.g. if you were driving dangerously), your criminal and traffic record, your character, your need for a license, whether you completed a traffic offenders program and whether you entered a plea of guilty.

Will I lose my license for Driving under the Influence of Drugs?

If you have entered a plea of guilty or have been found guilty of a DUI, you will be facing a fine and/or imprisonment and a minimum license disqualification period of 6 months (for first offence) or 12 months (for second or subsequent offence).

Do I have to have a certain reading of drugs to be charged with a DUI?

No. No readings of the amount of drugs in your system is required for you to be charged with and/or convicted of a DUI.

Will I have to do the Mandatory Alcohol Interlock Program?

No.

Does the “Home Safe Rule” Apply?

No. You can be on private premises and still be considered to have driven under the influence as long as the police/prosecution can prove a sufficient link between your driving and your ‘being under the influence’.