High Range Drink Driving (NSW)

The offence of driving with high range PCA (prescribed concentration of alcohol) under section 110(5) of the Road Transport Act 2013 is committed when a person drives a motor vehicle on a road or road-related area with a blood alcohol content (BAC) of more than 0.15 in their breath or blood. The offence is also known as high range drink driving or high range PCA.

This offence is treated very seriously by the courts, particularly where a person has had prior drink driving offences. A first high range drink driving offence attracts 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.

In determining the sentence for a high range drink driving offences, the court is required to have regard to a guideline judgment that provides guidance to the court about the range of appropriate sentences for offences of this kind.

Disqualification Periods for High Range Drink Driving

Police have the power to issue an immediate licence suspension for a High Range Drink Driving charge. Usually, the Court will backdate your disqualification period to commence at the time that the police originally suspended you from driving.

The Road Transport Amendment (Mandatory Alcohol Interlock Program) Act 2014 imposes a mandatory disqualification period for a high range drink drive offence, which varies depending on whether it is the offender’s first or second offence.

For first offences, the minimum disqualification period is six months with a maximum of nine months, where an interlock order is also made. Where an interlock exemption order is made, the automatic disqualification period is 3 years with a minimum period of 12 months.

For second or subsequent offenders, the minimum disqualification period is nine months, and the maximum is 12 months where an interlock order is also made. Where an interlock exemption order is made, there is an automatic disqualification period of five years which can be reduced to a minimum of two years.

Mandatory Interlock Orders for High Range Drink Driving

Mandatory interlock orders automatically apply to high range drink driving offences.

Mandatory interlock orders require the driver to obtain and serve a period of time on an interlock licence after having completed their disqualification period. During this period, the person must install and maintain an interlock device their vehicle.

Unless a driver applies for and is granted an interlock exemption order, a mandatory interlock order will be automatically applied when they are convicted.

To receive an exemption from a mandatory interlock order, a person needs to satisfy Section 212 of the Road Transport Act 2013. This provision requires:

(a) That the person does not have access to a vehicle in which to install an interlock device, or

(b) That they have a diagnosed medical condition that prevents them from providing a sufficient breath sample and installing the device is not reasonably practical.

The Mandatory Interlock Order for a first High range PCA offences is 2 years.

The Mandatory Interlock Order for a second or subsequent High Range PCA offence is 4 years.

What is High Range Drink Driving?

The offence of driving with high range prescribed concentration of alcohol (PCA) under section 110(5) of the Road Transport Act 2013 which states:

Offence–high range prescribed concentration of alcohol A person must not, while there is present in the person’s breath or blood the high range prescribed concentration of alcohol—

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)–occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

The definition of “drive” is very broad. It includes not only actually driving the vehicle, but also being in control of the steering, movement or propulsion of a vehicle.

The following acts could constitute an offence of High Range Drink Driving:

• Driving a vehicle; and
• Sitting in the drivers seat of a vehicle with the ignition on.

What must be proven?

For a person to be found guilty of High Range Drink Driving the prosecution must prove each of the following matters beyond a reasonable doubt:

• That you “drove” a motor vehicle; or
• Were in drivers seat an attempted to put the vehicle in motion; and
• At the time, your Blood Alcohol Concentration was over 0.150

If the prosecution do not prove every single one of the above elements, you will be found not guilty.

Which Court Will Hear the Matter?

This offence is summary offence, which means that it will be finalised in the Local Court of New South Wales.

Possible Defences to High Range Drink Driving

The following defences may be available for a High Range Drink Driving charge:

• That your Blood Alcohol Content was not higher than 0.15 at the time you drove (for example, if you drunk more after you finished driving);
• That you were not the driver of the vehicle;
• That you were not “driving” as defined by the Act;
• That there was an issue with the way the breath test/analysis was conducted which might render the reading inadmissible.

Guideline Judgment

On 8 September 2004 the New South Wales Court of Criminal Appeal delivered a guideline judgment concerning the offence of high range PCA (prescribed concentration of alcohol).

A guideline judgment is taken into account by courts in sentencing offenders. It includes:

• Guidelines that apply generally, or
• Guidelines that apply to particular courts or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of offenders (but not to particular offenders).

The guideline judgment establishes the “ordinary offence” of high range drink driving to include circumstances where the offender:

1. Drove to avoid inconvenience or not believing they were over the limit;
2. Has a BAC reading produced on random breath test;
3. Has prior good character;
4. Has nil or minor offences on traffic record;
5. Has a licence that was suspended on detection of the offence;
6. Pleaded guilty;
7. Poses little or no risk of re-offending; and
8. Faces significant inconvenience by loss of licence.

The guideline judgment then distinguishes matters based on whether they are aggravated or more serious than an “ordinary offence” by considering other matters relating to the offender’s ‘moral culpability’, including whether the offender:

1. Had a BAC over 0.15;
2. Was driving in an erratic or aggressive manner;
3. Caused a collision between a vehicle and any other object;
4. Engaged in competitive driving or showing off;
5. Posed a risk to the community, having regard to the distance they drive and other factors; and
6. Put others at risk by their driving.

For advice or representation in any legal matter, please contact Armstrong Legal.

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