Low Range Drink Driving (NSW)

The offence of driving with a Low Range PCA (prescribed concentration of alcohol) under Section 110(3) 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 concentration (BAC) of 0.05 to 0.079. The offence is also known as low range drink driving or Low range PCA.

Infringement or court attendance notice

When a person is caught driving with a low range PCA , police can issue either:

• an infringement/penalty notice, carrying a fine of $603; or
• a court attendance notice.

It is up to the discretion of the police whether they deal with a person’s first offence by way of a penalty notice or a Court Attendance Notice. However, an infringement/penalty notice is not available for a person’s second or subsequent low range drink driving offence.

Low Range PCAs by Infringement Notice

A penalty notice does not result in a criminal conviction. The offence is only recorded against your traffic record, not your criminal record. Further, if you receive an infringement/penalty notice, you are not required to attend court for the offence. The infringement notice amount for a Low Range PCA offence is $603.00 and does not involve any demerit points.

Where a Low Range PCA is dealt with by an Infringement/Penalty notice, you should also expect to either:

1. Receive an immediate licence suspension from the police for a period of three months, or
2. After paying the penalty notice, receive a Notice of Suspension from Transport NSW suspending your licence for a period of three months under Section 59 of the Road Transport Act 2013.

Options for dealing with a Low range Penalty Notice

If you receive a penalty notice, you have the option to make a court election on the offence and take the offence to court, or to file a licence appeal against the suspension.

A ‘Court Election’ is an election to have the traffic offence decided by a court (in the criminal jurisdiction), and requires the person electing to enter a plea of guilty or not guilty. Any conviction imposed by the court following a court election is recorded as a criminal conviction, and then the disqualification periods become mandatory.

Court elections are often made by persons wishing to avoid the suspension for a low range drink driving ticket.

Rather than court electing the ticket, you can file a licence appeal (link to licence appeal page) in relation to the suspension. These appeals give the court the power to reduce the suspension period if it is a Transport for NSW suspension, but Immediate police suspensions are much more difficult to change as they require that you demonstrate exceptional circumstances.

There are many different pros and cons to the choice between a licence appeal or a court election for a low range PCA penalty notice, and the law in this area is very complex. It is important that you get expert advice from a drink driving lawyer who is familiar with the intricacies of these options.

Low Range PCAs by Court Attendance Notice

If you are issued with a Court Attendance Notice, you are required to attend court to answer for the offence.

For first offences, there is a maximum penalty of a $2,200.00 fine.

For second/subsequent offences, the maximum penalty of a $3,300.00 fine.

This offence is also subject to mandatory disqualification periods and interlock orders for second or subsequent offences.

Disqualification Periods for Low Range Drink Driving

Police have the power to issue an immediate licence suspension for a Low 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.

For first offences, the minimum disqualification period is three months with a maximum of six months.

For second or subsequent offenders, the minimum disqualification period is one month, and the maximum is 3 months where an interlock order is also made. Where an interlock exemption order is made, there is an automatic disqualification period of 12 months which can be reduced to a minimum of 6 months.

The minimum disqualification period for a second and subsequent Low range drink driving offence is lower than a first offence, because of the Mandatory Interlock Orders that apply.

Mandatory Interlock Orders for low Range Drink Driving

Mandatory interlock orders automatically apply to second and/or subsequent low 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 second low range PCA offences is 12 months.

What is Low Range Drink Driving?

The offence of driving with low range prescribed concentration of alcohol (PCA) under section 110(3) of the Road Transport Act 2013 which states:

Offence–low range prescribed concentration of alcohol A person must not, while there is present in the person’s breath or blood the mid 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 driver’s seat of a vehicle with the ignition on.

What must be proven?

For a person to be found guilty of Low 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 driver’s seat an attempted to put the vehicle in motion; and
• At the time, your Blood Alcohol Concentration was between 0.050 and 0.079

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 Low Range Drink Driving

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

• That your Blood Alcohol Content was not higher than 0.050 at the time your drove (for example, if you drunk 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.

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

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