Drink Driving 

What must the prosecution prove?

To be found guilty of drink driving ("prescene of prescribed concentration of alcohol in person's breath or blood") the Prosecution must prove beyond reasonable doubt that:

1. The person did drive or attempt to drive a motor vehicle;

2. While there was present in the accused's breath (or blood) range prescribed concentration of alcohol (that is novice, special, low, middle or high, whichever may be applicable).

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If the Prosecution cannot prove each of these facts or "elements" you may have a Defence to the charge and should consider pleading not guilty.

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What are the drink drinking ranges?

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1. "Novice range" - between more than 0 grams and less than 0.02 grams;

2. "Special range"- between 0.02 grams and less than 0.05 grams;

3. "Low range" - between 0.05 grams and less than 0.08 grams;

4. "Middle range"- between 0.08 grams and less than 0.015 grams;

5. "High range"- between 0.015 grams or more. 

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What disqualification periods apply if I am convicted for a 1st offence?

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1. Novice, special and low range:​​​​ An automatic 6 months which can be reduced to a minimum of 3 months;

2. Middle range: An automatic 12 months which can be reduced to a minimum of 6 months;

3. High range: An automatic 3 years which can be reduced to a minimumum 12 months.

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Disqualification periods increase for 2nd offences, see below.

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What other criminal sentencing options can the Court impose?

The Court has the full array of sentencing options available to it including:

1. In the case of mid range (9 months for first offences or 12 months for second offences) or high range range (18 months for first offences or 2 years for second offences) to sentence a person to a full-time term of imprisonment;

2. To impose a fine;

3. To sentence a person to an Intensive Corrections Order or Community Corrections Order;

4. To order a person to comply with a Conditional Release Order to be of good behaviour;

5. To convict a person without imposing any other penalty;

6. To dismiss the charge without conviction pursuant to Section 10. This results in no disqualification because the charge is dismissed.

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How can I have my drink driving charge dismissed pursuant to section 10? 

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A Section 10 dismissal is always a discretion of the Magistrate and is one that is becoming increasingly difficult to get from a Magistrate for drink driving matters. 

To do so, you must very well prepared and be ready to present your material to the Court.

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There is a Guideline Supreme Court Judgment which states that section 10 should be almost never used for high range drink driving matters. It also sets out how drink driving matters generally should be viewed. However, it is still possible to get a section 10 for other ranges of drink driving. 

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There are factors which are viewed as aggravating features which you should be prepared to address. These include whether you had an accident which caused you to be brought to the attention of the Police. On the other hand, if you were merely brought to the attention of Police at an RBT and there was not anything wrong with your driving this may be a positive factor. 

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Should we Act on your behalf, it is mandatory that our client's complete a Traffic Offenders Program as all Magistrates will have expected this from a person pleading guilty to drink driving. 

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If you believe that alcohol has been an ongoing issue you should look at attending counselling and presenting a letter from a counsellor or psychologist to show that you are taking steps to address your problems which led to cause this slip in Judgment. Such steps will take you much further than presenting to court references showing that you need your licence, as the Court hears this in every matter. The Court wants to know what you have done to change your behaviour. 

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Further Consequences of a Conviction- Interlock

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It is also important to remember that if you are convicted of mid range drink driving or higher, that you will be automatically placed on the interlock scheme unless you have an appropriate exemption. 

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This scheme means that your motor vehicle will be fitted with a device where your vehicle does not start until you blow into a device which tests to make sure that you do not have alcohol on your breath. If you do not participate in the scheme your disqualification is longer.

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Find out more about Interlock here

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What Are The Disqualification Periods if it is a Second Offence in 5 years?

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1. Novice, special and low range; Automatica 12 months, minimum 6 months;

2. Middle range; Automatic 3 years, minimum 12 months;

3. High range; Automatic 5 years, miniumum 2 years;

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The Legal Guy, aka John Vizzone, barrister, is an experienced Criminal Lawyer and Drink Driving Lawyer who has represented hundreds of clients in such matters in courts across Sydney. If you have a matter, contact him now for a free quote for him to represent you. Alternatively call him on 0416167690.

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